Kumar v Minister for Immigration

[2020] FCCA 999

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 999

Catchwords:
MIGRATION – Application for judicial review – employer nomination visa – no matters of principle – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.03C

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl.186.223

First Applicant: SUNIL KUMAR

Second Applicant: NISHA KUMARI

Third Applicant: KAVYA JANGRA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 222 of 2019

Judgment of: Judge Riethmuller

Hearing date: 17 March 2020

Date of Last Submission: 17 March 2020

Delivered at: Melbourne

Delivered on: 17 March 2020

REPRESENTATION

The First Applicant appeared in person and on behalf of the Third Applicant.

The Second Applicant did not appear.

Counsel for the First Respondent: Ms Hanckel-Spice

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The First Applicant’s application for adjournment is refused.

2. The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

3. The First Applicant be appointed as litigation guardian of the Third Applicant.

4. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), the applications of the First and Third Applicants be dismissed.

5. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application of the Second Applicant be dismissed.

6. The Applicants pay the First Respondent’s costs fixed in the sum of $1,495.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 222 of 2019

SUNIL KUMAR

First Applicant

NISHA KUMARI

Second Applicant

KAVYA JANGRA

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 7 January 2019.  The applicant had sought an Employer Nomination (Permanent) (Class EN) visa under the Migration Act 1958 (Cth) (‘the Act’) and the Migration Regulations 1994. The Tribunal refused the application for review on the basis that the applicant did not fulfil the requirements of clause 186.223 which requires that he have an approved nomination with an employer.

2. The history of the matter is not dissimilar to many of the judicial review applications for this type of visa. The applicant had sought the visa to work with an employer that he had located, in this case, Sonu Motors Pty Ltd. The application by Sonu Motors Pty Ltd for approval to nominate the applicant for a position was refused by a delegate. As a result, the delegate also refused the visa application for the applicant.

3. The applicant and Sonu Motors Pty Ltd sought review with the Tribunal (as recounted at paragraph [6] of the decision). The applicants appeared before the Tribunal on 22 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted as a combined hearing for both the applicant and the applicant’s nominator, Sonu Motors Pty Ltd, however, Sonu Motors Pty Ltd did not appear at the hearing. Not surprisingly, the Tribunal affirmed the decision of the delegate with respect to Sonu Motors Pty Ltd which left the applicant without an approved nominated position.

4. The Tribunal were careful to write to the applicants pursuant to section 359A of the Act on 18 December 2018, informing them that on 10 December, the Tribunal had dismissed Sonu Motors Pty Ltd’s application for review and advising them that this would be a reason for refusing their application for a visa. The Tribunal asked that any comments be provided in writing by 2 January 2019. No forthcoming comments were received: see paragraph [10] of the review decision.

5. As a result, the Tribunal concluded that as there was no approved nomination, the applicant did not fulfil one of the requirements of the visa criteria and, therefore, the refusal of the visa had to be affirmed: see paragraph [17] of the decision.

6. Again, not dissimilar to many of the cases in this category, the applicants recount circumstances which, if true, would not reflect well upon the agent or employer. In this case, the applicant’s circumstances are touched on by the Tribunal (at paragraph [15]) where they say:

   15. In his oral evidence, the applicant told the Tribunal that he was employed by Sonu Motors Pty Ltd between October 2013 and March 2017. He ceased that employment due to stress and because he wished to attend his brother's wedding in India. After two to three months, his former employer engaged another employee to fill his role. As this employee was prepared to work for a lower salary than the applicant, Sonu Motors Pty Ltd was not prepared to re-employ the applicant.

7. The applicant told the Tribunal that he was seeking further employment as a mechanic, but that there was no other approved nomination for a position of a motor mechanic for him.

Adjournment Request

1. In this case, the applicant has a report from ‘better still… Psychological and Assessment Services’ prepared by a Mr Edwin (‘Eddy’) Kleynhans, a psychologist, registered number PSY0001118441, who appears to operate in Collins Street, Melbourne (‘Exhibit 1’). The applicant said that he was charged $600.00 for this report.

2. The report sets out a brief history of the applicant’s circumstances and a claim that he fears that he had been duped by Mr Bambi, who operates Sonu Motors Pty Ltd. The report, like a number of reports that Mr Kleynhans has provided in visa cases in recent times, goes on at some length to claim that the applicant suffers from depression and anxiety.

3. The report says that the applicant has a problem with concentration, retention, memory and attention span, conditions which are caused by anxiety and depressed mood.  The report argues that the applicant would not make sense at his hearing today given his problems, and that he is not ready to give consistent evidence in a formal setting such as a Tribunal or a Court.

4. Mr Kleynhans says that he would review the mental state of the applicant at the end of psychological treatment. The estimated timeframe for his treatment is not given.

5. On a reading of the report, one would easily gain the impression that the applicant is in a particularly parlous state, however, seeing the applicant in Court, presents a quite different picture. The applicant was engaging, coherent and clear as to his circumstances and the difficulties that he had confronted, which had led him to the position he is presently in. The applicant clearly understood the visa process and the difficulties that he faced.

6. I am not persuaded that the report by Mr Kleynhans provides a realistic assessment of the level of functioning of the applicant, nor that the applicant’s level of functioning is such as to warrant an adjournment of these proceedings. 

7. In the circumstances, I therefore refuse the adjournment application.

Judicial Review

1. I turn, then, to consider the grounds of judicial review.  In this case, the applicant sets out in his application twelve grounds. I will proceed to deal with them individually.

Ground One

1. Ground 1 provides:

   1. The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.

2. Ground 1 is not made out in any sense and, certainly, does not appear to be arguable given that the Tribunal member clearly identified that the issue of the approval of the nominator was a key issue. The Tribunal, quite properly, determined the nomination issue first and then proceeded to give the applicant notice and a further opportunity to put more material before the Tribunal. 

3. This is not a judicial review of the decision with respect to the nominator, but only of the decision with respect to the review of the visa application.  The material placed before me does not show an arguable case with respect to ground 1.

Ground Two

1. Ground 2 sets out:

   2. Tribunal did not give consideration to the evidence provided so it has fall into “jurisdiction error”.

2. This is a generalised ground and nothing that has been said indicates an arguable case with respect to jurisdictional error, nor the jurisdiction of the Tribunal or this Court.

Ground Three

1. Ground 3 is set out as follows:

   3. The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.

2. This ground appears to bear little relevance to the actual decision of the Tribunal. It is clear that in this case, the decision turned upon whether or not the applicant could fulfil an essential requirement. Clearly, the applicant could not fulfil that essential requirement of having an approved nomination and, therefore, was not able to obtain the visa.  The relevant issues relating to the merit of the case were clearly addressed by the Tribunal.

Ground Four

1. Ground 4 provides:

   4. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits.

2. The applicant has not identified any material that the Tribunal failed to have regard to in properly determining this application. Again, this is not an arguable ground in the context of this case.

Ground Five

1. Ground 5 alleges:

   5. The Tribunal Member with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural Justice and as such is a jurisdictional error on the part of the Tribunal member.

2. There is nothing to indicate that the Tribunal member in this case approached the matter with any preconceived mind or preconceived outcome.  The Tribunal member clearly conducted the matter in such a way as to ensure that they did not preconceive that the particular nomination by Sonu Motors Pty Ltd was necessarily the end of the matter.  As a result, they wrote to the applicant, giving him an opportunity to put in further material once the determination with respect to Sonu Motors Pty Ltd had been made. This ground is not arguable either on the basis of bias, apprehended bias or breach of the rules of procedural fairness.

Ground Six

1. Ground 6 provides:

   6. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error.

2. This ground alleges that the determination was irrational or arbitrary.  Nothing could be further from the truth in this case. The Tribunal identified the key criteria and that it was not, in fact, met by the applicant and, therefore, had no option but to affirm the decision of the delegate.

Ground Seven

1. Ground 7 provides:

   7. The disadvantage to the applicant inuring to him on account of the decision not to proceed or not to have jurisdiction is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing extenuating and compelling circumstances which would remedy further issues and doubts.

2. This ground appears to allege that the Tribunal ought to have granted some form of temporary visa or an adjournment, because of extenuating and compelling circumstances of the applicant. This is not an option for the visa criteria. 

3. There was nothing before the Tribunal to show that an adjournment was reasonably required. For example, this is not a case where there was a pending review with respect to the decision relating to Sonu Motors Pty Ltd, where it would be potentially appropriate to await the outcome of the nomination application before determining the visa application. There is no suggestion that the decision with respect to Sonu Motors Pty Ltd has been made the subject of judicial review proceedings. If it had, it may well have been appropriate for this application to be adjourned until the application with respect to Sonu Motors Pty Ltd had been determined, however, that is not required as Sonu Motors Pty Ltd has not brought an application. 

4. In circumstances, I am not persuaded that there is an arguable case identified in ground 7.

Ground Eight

1. Ground 8 provides:

   8. I do have exceptional circumstances beyond the application lodgement previously

2. This ground appears to simply reinforce ground 7 and fails for the same reasons. To the extent it alleges that exceptional circumstances is otherwise relevant, it cannot succeed

Ground Nine

1. Ground 9 provides:

   9. The Tribunal exercised its decision making power unreasonably and unconscionably;

2. This ground appears to be, in substance, a repetition of ground 6 and fails for the same reasons.

Ground Ten

1. Ground 10 provides:

   10. The decision is based on mistaken presumptions and/or erroneous findings;

2. This ground is similarly, in substance, a claim of the type discussed in grounds 6 and 9 and must fail for the same reasons.

Ground Eleven

1. Ground 11 provides:

   11. The Tribunal failed to consider the applicant's individual and specific circumstances and apply the law accordingly.

2. As discussed above, the Tribunal clearly identified the key issue in this case and made findings with respect to the applicant’s individual circumstances. Not only did the applicant not fulfil an essential requirement for the visa, but the Tribunal also note some of the difficulties that the applicant confronted in his own circumstances dealing with the employer, even though they were outside the specific requirements for the determination.  This ground shows no arguable case.

Ground Twelve

1. Ground 12 provides:

   12. That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made.

2. It does not appear to me that there is anything that is in the material or has been said by way of submissions that would indicate that the decision was an improper exercise of power. Everything indicates that the decision was effectively the only decision that the Tribunal could have made in the circumstances on the material before it. 

Appointment as Litigation Guardian

1. In these proceedings, the applicant is the guardian for the third applicant who is a child. It is appropriate that he be appointed litigation guardian for the child and the rules otherwise be dispensed with in that regard. 

Application by Second and Third Applicants

1. The second applicant has not appeared and, therefore, the proceedings with respect of her application as a family member of the first applicant ought to be dismissed for non-appearance. 

2. I note that the substantive visa application only relates to the first applicant and that the other two applicants are members of his family unit, and their cases rise and fall with the applicant’s.

Conclusion

1. In these proceedings, as I have found that there is no arguable case, it is appropriate to dismiss the application with respect to the first and third applicants and to dismiss the application with respect to the second applicant under rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001. 

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 29 April 2020