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

[2021] FCCA 1018

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1018

File number(s):

CAG 17 of 2020

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

14 May 2021

Catchwords:

MIGRATION –  Administrative Appeals Tribunal – Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa – whether the applicant was “disadvantaged” by his nominating employer and its migration agent because he was not informed by them that the nomination application was refused and that he did not have an approved nomination – whether the Tribunal “did not co-operate in listening to (his) reasons and affirmed the decision” despite the Tribunal knowing that he had been “disadvantaged by deceptive employer and agent” – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) s 357, 359, 476

Migration Regulations 1994 (Cth) cl 457.223(4)(a)

Cases cited:

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Number of paragraphs:

30

Date of last submission/s:

11 May 2021

Date of hearing:

11 May 2021

Place:

Canberra

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Applicant:

 Mr Galvin

ORDERS

CAG 17 of 2020

BETWEEN:

AMARJEET SINGH KHARE

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:	14 MAY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs fixed in the amount of $6,000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a male citizen of India. On 21 August 2017, the applicant sought a Temporary Business Entry (Class UC) Temporary Work (Skilled) (Subclass 457) visa.

2. On 4 September 2018, a delegate of the Minister for Immigration (“the delegate”), refused to grant the applicant his visa. The application was refused on the basis that the applicant did not have an approved nomination from an employer sponsor in place.

3. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 27 March 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.

4. The applicant now seeks judicial review of the Tribunal decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision is relatively short consisting of 10 paragraphs.  After noting the background and the type of visa being sought by the applicant, the Tribunal noted at paragraph 2 of its decision, that the applicant was nominated by Automotive One Pty Ltd for a position as a motor mechanic.  The sponsorship application made by Automotive One Pty Ltd was refused by the Department of Immigration (“the Department”) and the belated nomination application was otherwise finalised on 27 July 2018.

6. Automotive One Pty Ltd applied for a review of the Department’s decision to refuse the application for approval of sponsorship status.  On 14 February 2019, the Tribunal (differently constituted) decided that it had no jurisdiction to review the Department’s decision.

7. During the course of the Tribunal hearing, the applicant confirmed in his evidence to the Tribunal that, as at the time of the Tribunal decision, he was not the subject of an approved business nomination that has not ceased or that there was an approved nomination of an occupation that had not ceased.

8. Based on the applicant’s evidence and the material before it, the Tribunal was not satisfied that the applicant had an approved business nomination that had not ceased, or that there was an approved nomination of an occupation that had not ceased. The Tribunal found that the applicant did not satisfy cl 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”).

9. As the applicant’s wife and child were not included in the visa application, no decision was made in relation to them.  The Tribunal noted that although the applicant had attempted to include them in the review application, the Tribunal did not have jurisdiction, as there was no primary decision in relation to them to review.

10. Accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.

    GROUNDS OF JUDICIAL REVIEW

11. The grounds of judicial review, such as they are, are set out in the Initiating Application filed with the Court on 24 April 2020.  They are in narrative form, as follows verbatim:

    I am the applicant for Visa Subclass 457 and the application for the Visa Subclass 457 was lodged with the Department of Home Affairs on 21 August 17.  My application for the substantive visa was refused on 4 September 2018.

    The grounds of refusal provided by the Immigration’s case officer were:

    I have assessed the application and the reasons for my decision are detailed below.  A valid application for a Temporary Work (Skilled) visa has been made by the applicant.  Subclause 457.223(1) states that the applicant meets the requirements of subclause (2) or (4).

    Since no claims or evidence had been is submitted against subclause (2), I am not satisfied that the primary applicant satisfies subclause (2). The only subclause against which any claims or evidence has been provided is subclause 457.223(4) – Standard business sponsorship”. Therefore, I have considered the primary applicants claims against subclause 457.223(4). A visa cannot be granted unless the relevant criteria specified in the Migration Act and the Migration Regulations are satisfied. In this case, I am not satisfied that paragraph (a) of subclause 457.223(4) of Schedule 2 to the Migration Regulations are satisfied. Paragraph 457.223(4)(a) states in full: 457.223(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 undersection 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 under regulation 2.75 and the applicant was advised that the prospective sponsoring employer Automotive One Pty Ltd did not have an approved nomination in place for them. The applicant was invited to comment or withdraw the application in writing and was forwarded the prescribed period to do so. The specified timeframe has now passed, and to date, no response has been received from the applicant. At the time of this decision, the applicant is not the subject of approved nomination and has not withdrawn this application in writing. Having considered that the relevant legislation and all of the evidence before me, I find that the applicant does not meet the requirements of paragraph 457.223(4)(a) and consequently clause 457.223 is not met.

    Although I was informed later that my nominating employer lodged a review application in respect of decision to refuse the nomination and on the onus of this, I also applied for the review of decision of my 457 visa application which was refused by the Department of Home affairs on the basis of above mentioned reason specified in the decision record.

    In respect of my application for the review of decision with Administrative Appeal Tribunal, I was interviewed by member of the Tribunal on 26 March 2020.  It was a telephonic interview.  During the interview the Tribunal member informed me that my application cannot be approved as I do not have an approved nomination or pending nomination application.  I was also informed that my nominating employer’s application for review was decided with no jurisdiction in February 2019.

    Here I wanted to address my points and arguments in respect of my matter and the Tribunal member despite knowing that I have been disadvantaged by a deceptive employer and agent, did not cooperate in listening to my reasons and affirmed the decision.

    I understand that at the time of the Tribunal’s decision, I did not have an approved nomination, but I am currently working for my employer who originally sponsored me for Subclass 457 and is willing to sponsor me and lodge an application for nomination to nominate me under Subclass 482.  I wanted to address the Tribunal that I’m completing my two years of full-time experience in May 2020 which is a requirement for the new Subclass 482, and following this my current employer will be lodging an application for nominating me under Employer Sponsor Visa TSS.  The Tribunal Member did not listen to my points at all and gave me and affirm decision.  In the presence of the situation, I feel that Tribunal’s decision was not fair and not having to listen to the applicant valid arguments creates jurisdictional error by AAT.

    I with filling my evidences during the proceeding of this application with the Federal Circuit Court and expect Federal Circuit Court will provide me with a fair decision and justice.

    THE APPLICANT’S SUBMISSIONS

12. The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him.  The Court also ensured that the applicant had access to a pen and paper and was able to take notes during the course of the hearing, should he wish to.

13. At the commencement of the hearing the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review.  The Court also explained the process by which the hearing would be conducted.

14. Despite Court orders, no written materials or submissions were provided by the applicant in support of his application.  The applicant told the Court that his migration agent had failed to keep him informed as to the progress of his matter and the progress of the employer nomination. The Court explained to the applicant that having an approved employer nomination was an essential requirement for the grant of the visa he sought. In the absence of such an approved nomination, the Tribunal had no option other than to affirm the delegate’s decision not to grant him his visa.

    THE FIRST RESPONDENT’S SUBMISSIONS

15. The legal representative for the first respondent noted that the applicant’s grounds of judicial review were in a narrative format and it was not precisely clear what the grounds of judicial review were.  However, as the first respondent understands it, there are two grounds of judicial review.

16. Ground one, contends that, in relation to the delegate’s decision, the applicant was “disadvantaged” by his nominating employer and its migration agent because he was not informed by them that the nomination application was refused and that he did not have an approved nomination.

17. The legal representative for the first respondent submitted that this Court has no jurisdiction in relation to a primary decision, pursuant to s 476(2)(a) of the Migration Act 1958 (Cth) (“the Act”).  This ground has no merit

18. Ground two, as the first respondent understands it, is that the Tribunal “did not co-operate in listening to (his) reasons and affirmed the decision” despite the Tribunal knowing that he had been “disadvantaged by deceptive employer and agent”. The legal representative for the first respondent submitted that the Tribunal’s finding that the applicant was not the subject of an approved nomination and, therefore, did not satisfy cl 457.223(4)(a) of the Regulations, was the only conclusion that was open to the Tribunal, on the material before it.

19. Division 5, Part 5, of the Act is an exhaustive statement of the natural justice hearing rule; (see: s 357A of the Actand Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [66]).

20. The Tribunal properly invited the applicant to appear at a hearing to give evidence and present arguments. The applicant attended by telephone, with the assistance of his migration agent. It is apparent from the Tribunal’s reasons that the applicant had an opportunity to give evidence and present arguments about the determinative issues on the review, being that the applicant the subject of an approved business nomination. Further, there was no information that needed to be put to the applicant, under s 359A of the Act.  The fact that the applicant’s occupation was not the subject of an approved nomination was set out in the delegate’s decision, which was provided to the applicant as part of the review process.

21. At paragraph 3 of its decision, the Tribunal records that the nominating application for approval of sponsorship was refused by the Tribunal (differently constituted) on 14 February 2019, on the basis of a finding that the Tribunal did not have jurisdiction. 

22. The legal representative for the first respondent submitted that it was unnecessary for the Tribunal to put the outcome of the nominator’s application for review to the applicant under

    
    

    s 359A(1) or the alternative mechanism in s 359AA(1) of the Act, because the information that “would be the reason or part of the reason, for affirming” the delegates decision, was the fact that there was no approved nomination.  This fact remained the same, before and after the Tribunal’s decision in the nominators failed application for review; (see: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]).

23. In any event, even if the Court were to find that the Tribunal failed to comply with s 359A of the Act, the legal representative for the first respondent submitted that such error would be immaterial to the Tribunal’s decision, and it would be futile to remit the matter to the Tribunal on the basis that it would be bound to affirm the decision under review, as the applicant would still not be able to satisfy cl 457.223(4)(a) of the Regulations. 

24. Further, it would be futile to remit the matter to the Tribunal as the Migration Amendment (Temporary Skills Shortage Visa and Complimentary Reforms) Regulation 2018 repealed and replaced Regulation 457 of the Regulations and repealed 457 visas. As a result, it is (and was at the time of the Tribunal’s decision), no longer possible for an employer to seek approval of a nomination to sponsor a prospective 457 visa holder.

    CONSIDERATION

25. The applicant made an application for a 457 skills shortage visa.  A mandatory requirement for such a visa to be granted, was that the applicant needed to be the subject of an approved nomination by an employer for the visa.  The applicant’s employer nomination was refused by the Department.  An appeal by the applicant’s nominating employer to the Tribunal was also unsuccessful.

26. As set out above, given that the requirement for an approved employer nomination was a condition precedent for the grant of a s 457 of the Act visa to the applicant, the Tribunal had no option other than to affirm the delegate’s decision not to grant the applicant his visa.

27. In terms of the applicant’s grounds of judicial review, so far as the Court can ascertain, any complaint in relation to the delegate’s decision is not within the jurisdiction of the Court to consider.  The Court’s jurisdiction only relates to judicial review of the Tribunal’s decision.

28. In so far as the applicant’s grounds of appeal may indicate that the applicant was denied procedural fairness, the Court has reviewed the decision record and can find no breach of the procedural obligations that the Tribunal was required to follow. The applicant was properly invited to a hearing, was able to give evidence and present arguments. Any suggestion of a breach of either s 359A or s 359AA of the Act, even if found by the Court, would be immaterial to the overall outcome, as it would be futile to remit the matter back to the Tribunal for consideration, bearing in mind that s 457 of the Act visas no longer exist.

29. In the current circumstances, the only option for the applicant is for a fresh visa application to be submitted in whatever mode he may think appropriate.  As the applicant is unrepresented, the Court has perused the decision record but is unable to find any unarticulated jurisdictional error. No jurisdictional error is made out in relation to the application. 

    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:       14 May 2021