KURUPPU v Minister for Immigration

[2015] FCCA 2450

FEDERAL CIRCUIT COURT OF AUSTRALIA

KURUPPU & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2450

Catchwords:
MIGRATION – Application for judicial review – show cause hearing – no arguable case to relief – application dismissed pursuant to Rule 44.12.

Legislation:

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001, rr.44.12, 44.13

First Applicant: ARUNI KURUPPU

Second Applicant:     MAHESH PRIYANSHANTHA SAYAKKARAGE

Third Applicant: EVIN NIMSUKA SAYAKKARAGE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2519 of 2014

Judgment of: Judge Jones

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Melbourne

Delivered on: 11 September 2015

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondents: Ms Mitchell

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The second respondent’s name be amended to the Administrative Appeals Tribunal.

2. The application for judicial review filed 12 December 2014 be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

3. The applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2519 of 2014

ARUNI KURUPPU

First Applicant

MAHESH PRIYANSHANTHA SAYAKKARAGE

Second Applicant

EVIN NIMSUKA SAYAKKARAGE

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the (then) Migration Review Tribunal (“the Tribunal”) dated 8 December 2014 affirming a decision of a delegate of the first respondent (“the Minister”) refusing to grant the applicants, Employer Nomination (Residence)(Class BW) visa (“the visa”).

2. The Minister has made an application pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Rule 44.12 of the Rules provides that the Court may dismiss the application if it is not satisfied that the applicants raised an arguable case for the relief claimed. Rule 44.13 of the Rules provides that, at a show cause hearing, the applicants are confined to the relief sought and the grounds mentioned in the application.

3. The matter can be dealt with briefly as, notwithstanding there are many grounds for review set out in the application for judicial review filed 12 December 2014, the applicant has told the Court that she does not object to the Tribunal decision. She stated she had applied for judicial review so she (and her family) can remain in Australia for another two years.

4. The first applicant is a 32 year old citizen of Sri Lanka (CB1-2). The second applicant is her husband, a 36 year old citizen of Sri Lanka, while the third applicant is their 3 year old son (CB6-7). The applicant has since given birth to another child.  The second and third applicants applied for the visa as members of the first applicant’s family unit. Accordingly, I shall refer to the first applicant as the applicant in this decision.

Statutory Scheme 

1. The relevant subclass of visa was subclass 857 visa.

2. In Part 857 of Sch 2 to the Migration Regulations 1994 (“the Regulations”), the primary criteria are set out in Division 857.2. In that clause, the primary criteria are set out in Subdivision 857.21 and 857.22 which are respectively headed:

   (a)    ‘Criteria to be satisfied at time of application’; and

   (b)    ‘Criteria to be satisfied at the time of the decision’.

3. In Subdivision 857.21 of Sch 2, cl.857.213(a) requires that the applicant;

   “…has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer.”

4. In Subdivision 857.22 of Sch 2 (criteria to be satisfied at the time of decision), cl.857.221 requires that:

   “The appointment mentioned in paragraph 857.213(a);

   (a)has been approved; and

   (b)has not been withdrawn; and

   (c)continues to satisfy the criteria for approval; and

   (d)is still available to the applicant.”

5. The salient facts are:

   (a)The applicant’s application for the visa made on 28 June 2012 was accompanied by an employer nomination, Unique Star Hair Salon Pty Ltd (“the employer”) (CB63-67);

   (b)On 21 October 2013, a delegate of the Minister refused the employer’s application for the approval of a nominated position as an “approved appointment” (CB331 - 338);

   (c)On 21 October 2013, by letter sent by email to the applicant’s representative, the applicant was invited by a delegate of the Minister, to comment on adverse information, namely, that the employer’s nomination had not been approved (CB346-348);

   (d)On 11 November 2013, the applicant’s representative responded to that invitation by email stating that (CB350-351):

   “My client instructs me that a MRT appeal has been lodged in relation to the nomination from her employer. My client is aware that her visa will be refused and is now anticipating the refusal…”

   (e)On 13 November 2013, the Minister’s delegate informed the applicant that her application has been refused (CB354-359). The reason given for that decision was that, given the employer’s nomination application had not been approved, the applicant did not meet cl.857.221(a) (CB360-362).

   (f)On 29 November 2013, the applicants applied to the Tribunal for review of the delegate’s decision (CB371-394);

   (g)By letter dated 31 October 2014, sent to the applicant’s representative by post, the Tribunal invited the applicants to appear before it to give evidence and present arguments at a hearing scheduled on 4 December 2014 (CB407-416);

   (h)On 31 October 2014, the Tribunal sent a letter to the applicant’s migration agent informing the applicant it had information that it considered would, subject to any comments or response the applicant made, be a reason or part of the reason for affirming the decision under review. The information that was identified was that the applicant was not, as she was required to be under cl.857.221, the subject of an approved nomination at the time of decision (CB 418-419).

   (i)The letter dated 31 October 2014 also stated that if the Tribunal did not receive the comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking further action to obtain the applicant’s views on the information, and warned the applicant that she would lose any entitlement she might otherwise have to appear before the Tribunal to give evidence and present arguments (CB 419);

   (j)The applicant’s representative returned a completed “Response to Hearing Invitation” form to the Tribunal on 5 November 2014 (CB421-423). This did not provide a response to or comment on the information as requested. Nor did the applicant seek an extension of time in which to provide any such comment or response;

   (k)By email sent to the applicants’ representative on 3 December 2014, the Tribunal gave the applicant a further  opportunity to respond by 4 December 2014 (CB 424);

   (l)Later that day, the applicants’ representative contacted the Tribunal by telephone (CB425) and by email (CB426-7) submitting, in summary, that;

   (i)the applicant was aware of the refusal of the employer’s nomination application and that consequently she was unable to satisfy cl. 857.213 and 857.221;

   (ii)the applicant was however willing and able to attend a hearing before the Tribunal and that it was her statutory right which she wished to exercise; and

   (iii)the two invitations sent on 31 October 2014 did not state that the hearing invitation already sent out would be revoked and the hearing already scheduled would be cancelled if a response was not received, and that the hearing should therefore be rescheduled.

   (m)The Tribunal replied by email to the applicants’ representative later on 3 December 2014 noting the effect of ss. 359C(2), 360(3) and 363A were that the Tribunal has no power to permit the applicant to appear at a hearing (CB428);

   (n)On 8 December 2014, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB432-435). In its decision, the Tribunal:

   (a)Identified the relevant subclass of the visa (CB443 [3]) and CB435 [23]-[24]);

   (b)Summarised the matters set out in 9(g) to (m) above (CB433 [4] – CB434 [9] – [11]);

   (c)Noted the applicant’s concession that she was “aware that the nomination application associated with her visa has been refused’ and that ‘this means that she is unable to satisfy Schedule 2 cl. 857.213 and 857.221” (CB435 [20];

   (d)Found that the nomination application  lodged by the employer has not been approved (CB435 [21]);

   (e)Concluded that the applicant did not satisfy cl. 857.221(a) (CB436 [22]); and

   (f)Therefore affirmed the delegate’s decision not to grant the applicants the visa (CB435[25]).

Judicial Review

1. The grounds of judicial review specified by the applicant are:

   “The decision made by the Second Respondents

   (a)Was made without jurisdiction or is affected by an error of jurisdiction

   (b)Is affected by an error of law;

   (c)Is so unreasonable that no reasonable decision maker could have made it;

   (d)Is based on a finding for which there was no evidence or other material;

   (e)Takes into account irrelevant considerations

   (f)Was an improper exercise of power conferred by the Migration Act 1958

   (g)Was otherwise contrary to law

   (h)Was made in bad faith”. 

2. I am satisfied, in light of the applicant’s submission, that she does not press any of these grounds. Her submissions did not relate in any way to any of the grounds.

3. Nevertheless out of an abundance of caution I find that the grounds do not give rise to jurisdictional error for the following reasons.

4. First, I am satisfied that the Tribunal complied with procedural fairness obligations under Part 5, Division 5 of the Act:

   (a)    The Tribunal invited the applicant to attend a hearing and give evidence: s.360;

   (b)    The invitation complied in all respects with s.360A;

   (c)    The correspondence sent to the applicant on 31 October 2014 complied with the requirements under s.359A (see 9(h) – (i));

   (d)    There is no dispute the applicant received the invitation to attend the hearing and the correspondence in accordance with s.379A of the Act (see 9(g));

   (e)    Under s.359C, if an applicant does not respond to an invitation given under s.359A within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information or the applicant’s views on the information. In addition, pursuant to s.360(2)(c) and (3), the applicant is not entitled to a hearing before the Tribunal. The applicant failed to respond to the Tribunal’s invitation (see 9(j)-(m)); and

   (f)     Section 363A of the Act provides, relevantly that if a provision of Part 5 of the Act states that a person is not entitled to do something, then unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing.

5. As the applicant did not respond to the Tribunal’s correspondence dated 31 October 2014, she was not entitled to a hearing before the Tribunal.

6. I am satisfied the Tribunal correctly understood the relevant legal framework, gave proper consideration to the material before it and reached the only decision open to it. Its decision was reasonable and no question of bias arises on the evidence.

Conclusion

1. For the reasons set out above, I find the applicant does not have an arguable case.

2. Consequently, I will make orders that her application for judicial review be dismissed pursuant to Rule 44.12. I will also award costs against the applicant.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 11 September 2015