KUMAR v Minister for Immigration

[2018] FCCA 1418

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1418

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) Visa – application for review of decision by the Administrative Appeals Tribunal – where the grounds of review are unparticularised – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 476, 425, 424A, 424A(3)(b)

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

Cases cited:

Shu Qiang Huo v The Minister for Immigration and Multicultural Affairs [FCA] 617

Minister for Immigration and Citizenship v Li and Anor [2013] HCA 18
WZAVW v Minister for Immigration and Border Protection & Anor [2016] FCA 760

Applicant: VARINDER KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2215 of 2016

Judgment of: Judge Kirton

Hearing date: 24 May 2018

Date of Last Submission: 24 May 2018

Delivered at: Melbourne

Delivered on: 24 May 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr Grant

Solicitors for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore Lawyers

ORDERS

1. The Application is dismissed.

2. The Applicant pay the First Respondent’s costs in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2215 of 2016

VARINDER KUMAR

Applicant

and

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

and

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

1. This is an application filed on 12 October 2016 (“Application”) where the applicant applies for an order granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“Act”).

2. The migration decision the applicant seeks orders in relation to is the decision of the Administrative Appeals Tribunal (“Tribunal”) made on 5 October 2016 (“Tribunal Decision”).  The Tribunal Decision upheld a decision by the delegate of the First Respondent (“Delegate”) to refuse the applicant a Temporary Business Entry (Class UC) Visa (“Visa”). 

3. The grounds of the application for a review set out in the Application are generic and are unparticularised.

4. The Application is supported by an affidavit filed on 12 October 2016 and affirmed on 12 October 2016 by the applicant (“Affidavit”).  The Affidavit annexes a copy of the Tribunal Decision and a letter from the Tribunal to the applicant dated 6 October 2016.

Background

1. The applicant is a national of India.  On 30 May 2014, he made an application for the Visa.[1] 

   [1] Court Book (“CB”) 1-30.

2. On 4 November 2014, the Delegate refused the application for the Visa on the basis that the applicant did not meet cl.457.223(4)(a) of sch.2 to the Migration Regulations 1994 (Cth) (“Regulations”), because the applicant was not the subject of an approved nomination that had not ceased.[2] 

   [2] CB 52-53.

3. On 24 November 2014 the applicant sought a review of the Delegate’s decision before the Migration Review Tribunal (“MRT”).[3]  On 21 May 2015, the MRT determined that it did not have jurisdiction to review that matter.[4] 

   [3] CB 54-55.

   [4] CB 76-78.

4. The applicant then applied for judicial review to the Federal Circuit Court of Australia in relation to that decision and on 10 March 2016 the Court made orders by consent remitting the matter to the Tribunal for reconsideration.[5]

   [5] CB 89-90.

5. On 7 July 2016, the applicant attended a hearing before the Tribunal.[6]   

   [6] CB 106-108 (the Tribunal hearing record).

6. On 6 September 2016 after requests by the applicant, the Tribunal informed the applicant by email that it would allow the applicant until 30 September 2016 to provide evidence of an approved nomination for the purposes of cl.457.223(4)(a) of sch.2 of the Regulations (“Clause 457”).[7] 

   [7] CB 117.

7. On 30 September 2016 the applicant again sent an email to the Tribunal and requested a further extension of time.[8]  On 5 October 2016 the Tribunal notified the applicant that it had considered the request for a further extension of time, however, it did not agree to providing the applicant any further time to provide the evidence and indicated that it would make a decision on the review of the evidence before it.[9] 

   [8] CB 118.

   [9] CB 122-123.

8. On 5 October 2016 the Tribunal affirmed the Delegate’s Decision.[10] The Tribunal noted in paragraph [7] of the Tribunal’s Decision that Clause 457 required that there is a nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased. A copy of Clause 457 is annexed to the Tribunal Decision.

   [10] CB 125-131.

9. The Tribunal noted in paragraph [14] of the Tribunal Decision that the applicant had nominated three sponsors since lodging his application for a Visa and none had been approved. The Tribunal noted in paragraph [15] that it had been more than two years since the visa application had been lodged, and the Tribunal was not satisfied that the criteria for Clause 457 would be met by the applicant in “the foreseeable future”. The Tribunal found that the applicant had been given a “fair opportunity” to meet the requirements of Clause 457.

Current Proceeding

1. In the application filed in this Court on 12 October 2016 the applicant seeks: An order that the decision of the Tribunal be quashed. 

2. The applicant also specifies the following grounds of review:

   (1) Jurisdictional error (“Ground 1”).

   (2) Error in interpretation of legislation (“Ground 2”).

   (3) Natural justice.  I believe I was not given a fair hearing.  My nomination application is still under process (“Ground 3”).

3. It is noted that in paragraph 1 of the Affidavit, the applicant states:

   Member of Administrative Appeals Tribunal misinterpreted the applicable law or misapplied the law and made jurisdiction error.

4. No other information is set out in the Affidavit as to the particulars of these allegations. 

5. The Response to the Application of the First Respondent filed on 21 October 2016 opposes the Application and states:

   1. The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 5 October 2016.

6. The First Respondent seeks the following orders: 

   1.  the application be dismissed;  and

   2. the applicant pay the first respondent’s costs of these proceedings. 

7. By orders made by Registrar Caporale on 12 April 2017 the following orders were made: 

   3.   The applicant file and serve the following by 17 May 2017: 

   a. any amended application with proper particulars of the grounds of the application; 

   b.  any affidavits; 

   d.  supplementary court book, if any;  and

   e.  written submissions. 

   And then:

   5. Other than the court book of relevant documents, all evidence   relied upon by the parties must be presented by way of affidavit. 

8. As at the date of this hearing of the Application, the applicant had not filed an amended application, any affidavits, supplementary court book or written submissions. 

Consideration

1. The First Respondent in written submissions filed 7 June 2018 submits that the grounds of the Application are not properly particularised to be meaningful, and on that basis alone they must fail.  The First Respondent submits that the grounds of the Application at their highest seek that the Court undertake an impermissible merits review of the matter. 

2. In relation to Ground 1, “jurisdictional error”, the First Respondent submits that the grounds do not identify any jurisdictional error in the Tribunal Decision and should be dismissed. 

3. In relation to Ground 2, “error in interpretation of legislation”, the First Respondent submits that the Tribunal properly identified the relevant law in paragraph [7] of the Tribunal Decision. The Tribunal then properly considered the evidence the applicant provided in respect to Clause 457. The Tribunal noted that the applicant’s previous nomination applications had been refused, that he had changed his sponsor, and that there was no evidence before it of an approved nomination. The First Respondent submits that the Tribunal was correct to find that the applicant did not satisfy Clause 457, and that the Visa application should be refused.

4. In relation to Ground 3, being the complaint by the applicant that he was “not given a fair hearing” as his nomination application was “under progress”, the First Respondent submits that paragraph [10] of the Tribunal Decision indicates that the Tribunal allowed the applicant additional time following the hearing on 7 July 2016 to provide evidence that his new sponsor’s application had been approved. 

5. It is submitted that paragraphs [11] to [13] of the Tribunal’s Decision demonstrate that the Tribunal subsequently postponed making its decision on two occasions at the applicant’s request to allow evidence of an approved nomination to be provided. 

6. The First Respondent submitted that when the Tribunal was informed by the applicant that the second nomination application had been refused, it then considered whether to further adjourn making its decision pending the outcome of the further nomination. However, as the applicant had had already two nomination applications by two different sponsors refused, and sufficient time over two years to provide evidence that he satisfied Clause 457, the Tribunal refused to adjourn making the decision any further.[11]

   [11] CB 128, paragraphs [14] and [15].

7. The First Respondent submits that the Tribunal is not required to indefinitely defer its decision-making process and relies upon the case of Shu Qiang Huo v The Minister for Immigration and Multicultural Affairs [FCA] 617.  In that case, Conti J said at [31]: 

   … there was no error of law apparent or manifest in the conduct of the Tribunal below.  It was under no obligation to postpone its decision-making merely because Mr Huo wished to attempt either at departmental level or in the forum of another Tribunal hearing to meet a statutory criterion not as yet to have been fulfilled.

8. The First Respondent submits that the Tribunal provided an “intelligible justification” for proceeding as it did and its decision not to defer making its decision any further was reasonable in the circumstances.  The First Respondent relies upon the decision of the High Court in Minister for Immigration and Citizenship v Li and Anor [2013] HCA 18 in the context of reasonableness.

9. The First Respondent also argues in relation to Ground 3 that natural justice has been accorded to the applicant. The applicant was invited to a hearing in accordance with s.425 of the Act.[12]  The applicant attended the hearing.[13]  The applicant was on notice about the primary issues of review.  The Tribunal explained that the requirement of the nomination had not ceased.[14]

   [12] CB 103-105 (invitation to attend the hearing).

   [13] CB 106-108 (Tribunal hearing record).

   [14] CB 127, paragraph [10].

10. The First Respondent’s counsel also submits that the Tribunal complied with its procedural requirements, and that there was no information required to be put pursuant to s.424A of the Act, and that the information fell within s.424A(3)(b), as it was given by the applicant for the purposes of the review.

11. The First Respondent submits that the grounds of review fail to identify jurisdictional error in the Tribunal Decision and the application should be dismissed.  The First Respondent seeks costs of $5500. 

12. I agree with the submissions of the First Respondent in relation to Grounds 1, 2 and 3 of the Application.  Furthermore, in my opinion, the applicant has failed to particularise the nature of the jurisdictional error that is said to impugn the Tribunal’s Decision.  I rely upon the following passage from the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection & Anor [2016] FCA 760 at paragraph [35] where it is said:

    … an unparticularised assertion of jurisdictional error is vague and meaningless.  It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is.  Failure to particularise the ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

Decision

1. As Ground 1, 2 and 3 are unparticularised, I find that they are meaningless grounds of review.  It is impossible to say what matters of fact and law underpin the contention of the existence of jurisdictional error. 

2. Accordingly, I will dismiss the Application and order that the applicant pay the First Respondent’s costs fixed in the sum of $5500.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Kirton

Date: 1 June 2018