Kumar v Minister for Immigration - [2020] FCCA 1198

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 1198

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a business visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth)

Cases cited:

Kaur v Minister for Immigration [2018] FCCA 141

Quan v Minister for Immigration [2013] FCA 1239

Applicant:

ANIL KUMAR

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2953 of 2019

Judgment of:

Judge Driver

Hearing date:

15 May 2020

Delivered at:

Sydney

Delivered on:

15 May 2020

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Respondents:

Mr A Downie of Minter Ellison by telephone

INTERLOCUTORY ORDERS

Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2953 of 2019

ANIL KUMAR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant, Mr Kumar, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 31 October 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Kumar a temporary business entry visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 7 May 2020.
Mr Kumar is a citizen of India. On 5 April 2016, he arrived in Australia as the holder of a short stay specialist (Subclass 400) visa (short stay visa), which was granted on a three month multiple entry basis.[1] On 5 July 2016, the short stay visa expired and Mr Kumar became an unlawful non-citizen.[2]
[1] Court Book (CB) 47
[2] CB 47
On 31 August 2016 Mr Kumar lodged an application for a skilled visa.[3] He indicated as his nominating employer, K. M. Sons Pty Ltd t/a The Sapphire Function Centre, in the nominated position of chef.[4]
[3] CB 1–12
[4] CB 7
On 21 October 2016 the delegate refused the application for a skilled visa, having not been satisfied that Mr Kumar met clauses 3003, 3004 or 3005 of Schedule 3 to the Migration Regulations 1994 (Cth) (Regulations).[5]
[5] CB 45–50
On 27 October 2016 Mr Kumar sought review of the delegate's decision before the Tribunal.[6]
[6] CB 51–52
On 30 July 2019 the Tribunal wrote to Mr Kumar inviting his comment on information it considered would be part of the reason for affirming the decision under review. The particulars of the information were that departmental records indicated that he was not the holder of a substantive visa at the time he lodged the application for the visa; that his last substantive visa was in effect until 5 July 2016; and that as at 5 July 2016, he was not the subject of an approved nomination that had not ceased. The letter informed Mr Kumar that he may have to satisfy Schedule 3 criteria, including clause 3004(f)(i) which required the Tribunal to consider whether he would have been entitled to be granted the visa if he had applied on it on the day he last held a substantive visa.[7]
[7] CB 82–83
On 30 August 2019 the Tribunal invited Mr Kumar to appear before it in order to give evidence and present arguments in relation to the issues in his case.[8] On 23 September 2019 Mr Kumar appeared before the Tribunal with the assistance of his representative and a Hindi interpreter.[9]
[8] CB 100–101
[9] CB 269
On 31 October 2019 the Tribunal affirmed the delegate's decision.[10]
[10] CB 279–285

Tribunal decision

The Tribunal summarised the procedural background and evidence before it and identified the issue under review as being whether Mr Kumar met Schedule 3 clause 3004 for the purpose of clause 457.211 of Schedule 2 to the Regulations.[11]
[11] CB 280–281 at [1]–[13]
The Tribunal identified that it had to be satisfied that Mr Kumar would have been entitled to be granted the skilled visa had he applied for the visa on the day he last held a substantive visa.[12] The Tribunal recorded that it was not disputed that, at the time of the application for the visa, Mr Kumar was not the holder of a substantive visa, and that departmental records indicated that Mr Kumar did not possess an approved nomination in accordance with clause 457.223(4)(a) of Schedule 2 to the Regulations at the time he last held a substantive visa such that he would not have been entitled to a grant of the visa at that time.[13]
[12] CB 281 at [19]
[13] CB 282 at [22]–[23]
The Tribunal observed it had no discretion in “these cases” and found that as Mr Kumar would not have been entitled to be granted the visa had he applied for it on the last day he held a substantive visa, clause 3004(f)(i) was not met and, as such, the decision under review had to be affirmed.[14]
[14] CB 283 at [27]–[32]

The present proceedings

These proceedings began with a show cause application filed on 12 November 2019. Mr Kumar continues to rely upon that application. There are six grounds in it:
1. Tribunal made jurisdictional omission and did not properly consider the facts presented to AAT-MRT; Tribunal errored by not properly considering the procedural fundamental of Migration Act and s.55
2. Any information before the application is determined; ref: Berenguel (Obiter), Waensila (obiter) Section 55 has not limitation of time; thus an error made by the AAT-MRT;
3. Tribunal did give a chance to submit New Nomination in support of my matter, it was not a fair hearing
4. The AAT-MRT made jurisdictional error in denying the application for ENS 457 in failing to consider all the facts and the law related to the Business Entry & Nomination visa claims
6. AAT-MRT failed to acknowledge the fact that obligations under Migration Act and did not accepted my claims in fair manner
(errors in original)
Mr Kumar also relied upon an affidavit filed on 19 November 2019, which I received as a submission. I have before me as evidence the court book filed on 22 January 2020 and the affidavit of Anthony Robert Gardner, made on 23 April 2020. Mr Gardner’s affidavit annexes screenshots from a database operated by the Minister’s Department. They establish that the last substantive visa held by Mr Kumar expired on 5 July 2016. Mr Kumar accepts the accuracy of that record.
I invited oral submissions from Mr Kumar this morning. He told me that he arrived in Australia on a subclass 400 skilled work visa. This was valid for three months and entitled him to multiple re-entries. He was advised by a migration agent to travel to Thailand, which would have the effect on his return of extending his visa by three months. It appears that that advice was wrong. Had it been correct, then Mr Kumar would have continued to hold that substantive visa at the time he applied for the current visa in issue.
However, because the last substantive visa was not extended, he did not hold a substantive visa at the time he applied for the visa currently in issue. That proved fatal to Mr Kumar’s visa application. Mr Kumar might have still qualified for the visa had he been able to establish that he would have qualified for the visa at the time his last substantive visa expired. As found by the Tribunal, however, Mr Kumar would have been unable to establish a necessary criterion as at that date being that he had a sponsor.
It follows in the circumstances that Mr Kumar’s judicial review application is doomed to fail. Assuming poor advice from his migration agent, that could not disturb the outcome. Even if something more serious could be established against the migration advisor, it would be futile to remit the matter to the Tribunal as no different decision could be made. I otherwise agree with the Minister’s submissions concerning the grounds of review.
The grounds raised take issue with the Tribunal's assessment of Mr Kumar’s evidence and claims, allege that the Tribunal did not expressly consider all of the information he provided in relation to the substantive claim for the visa, and challenge the point in time to which the Tribunal directed its assessment.
Generally the grounds are misconceived in light of the particular dispositive findings made by the Tribunal. In particular:
a)Mr Kumar was not the holder of a substantive visa at the time he lodged the application for the visa onshore in Australia, being 31 August 2016, in circumstances where the last substantive visa he held ceased on 5 July 2016;[15]
b)as a result, clause 457.211(b)(ii) of Schedule 2 to the Regulations, in the form that it was in on 31 August 2016, required Mr Kumar to satisfy Schedule 3 clauses 3003, 3004 and 3005;
c)clause 3004 contained a number of cumulative requirements that applied to Mr Kumar, one being that he “would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa”;[16] and
d)subclause 457.224(4) in the form that it was in on 31 August 2016, required Mr Kumar to be the subject of an approved nomination, among other things.
[15] affidavit of Mr Gardner at pages 4 and 5
[16] clause 3004(f)(i) of Schedule 3 to the Regulations
In light of these observations, the Tribunal correctly found that it lacked discretion to do anything other than affirm the delegate's decision having found, as a matter of fact, that Mr Kumar ceased to hold his last substantive visa on 5 July 2016 and that, as at that date, he was not the subject of an approved nomination and therefore was not a person who would have been entitled to the grant of the visa if he had applied for it on that day.
Notwithstanding the fact that it identified that it lacked discretion, the Tribunal acknowledged the documentary and oral evidence given by Mr Kumar, including the evidence relevant to his skills and qualifications, the fact that he was the subject of an approved nomination dated 10 January 2019, and the hardship that may be experienced by both Mr Kumar and his employer. The Tribunal gave genuine and realistic consideration to this evidence but found that it could not change the decision it was required to make “in accordance with the legislative provisions”.[17] Those provisions required the Tribunal to limit its inquiry to the point in time at which Mr Kumar last held a substantive visa, and contrary to his application, did not afford him an unlimited window of time in which to take steps to establish that he met the essential criteria for the grant of the visa.
[17] CB 238 at [27]
The approach taken by the Tribunal accords with appellate authority. In Quan v Minister for Immigration[18] Farrell J found at [33], on the basis that the appellant did not have an approved sponsor on the last day on which he had held a substantive visa, that: [19]
…no matter how compelling the reasons may be to grant the applicant a 457 visa…the applicant is not entitled to the grant of a 457 visa because cl 3004(f) cannot be satisfied.
[18] [2013] FCA 1239
[19] see also, eg, Kaur v Minister for Immigration [2018] FCCA 141 per Judge Hartnett
The Tribunal properly put this matter to Mr Kumar in accordance with its obligations under s.359A(1) of the Migration Act 1958 (Cth). Mr Kumar did not dispute that he was not the subject of an approved nomination as at 5 July 2016, either in his response to this letter or in the submissions he advanced in response to questions put to him when he appeared before the Tribunal. Notably Mr Kumar contended that he would have satisfied the criteria for the grant of the visa on the basis that he was the subject of a nomination approved on 12 October 2016.[20] That contention was misconceived then, as it is now in the context of establishing jurisdictional error in the Tribunal's decision. The Tribunal was plainly required to assess, as a matter of fact, whether Mr Kumar would have satisfied the necessary criteria for the grant of the visa as at the date he last held a substantive visa. Mr Kumar did not dispute that he did not have an approved nomination on 5 July 2016, and does not dispute that fact now. Accordingly, on the basis of Mr Kumar’s own evidence, the Tribunal correctly applied the law to the facts that were before it.
[20] CB 118
Furthermore, the material facts had crystallised by the time the Tribunal had conducted its review such that, even if the Tribunal had given Mr Kumar further time to “submit a new nomination”, and he did so, it would have remained bound to affirm the decision under review. Accordingly, Mr Kumar has failed to establish that he was denied a fair hearing, or that the Tribunal misdirected itself as to the point in time of the assessment was required to undertake.
Contrary to Mr Kumar’s allegation, the Tribunal dealt with his claims in a fair manner. Notably, Mr Kumar was put on notice of the dispositive issue and the thought processes of the Tribunal, was afforded a reasonable opportunity to respond to those issues, and has not otherwise established that he was denied procedural fairness. The Tribunal gave Mr Kumar, on request, an opportunity after the hearing to advance submissions on the issue of whether it was wrong about its understanding of the operation of subclause 3004(f).[21] The fact that Mr Kumar, who was represented by a migration agent in the course of the review, did not, or could not, avail himself of that opportunity does not suggest that the Tribunal denied him a fair hearing or otherwise committed jurisdictional error.
[21] CB 281 at [11]
I conclude that Mr Kumar is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Kumar claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 20 May 2020