Mangat v MHA - [2019] FCCA 2227

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANGAT v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2227

Catchwords:
MIGRATION – Temporary Business Entry (Class UC) Subclass 457 visa – decision of Administrative Appeals Tribunal – whether applicant was on notice of determinative issue – application of transitional provisions – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), pt.5, div.5, ss.359, 476

Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth), reg.2.75, cl.457.223 of sch.2, cl.6704 of pt.67 of sch.13

Cases cited:

AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
CRI026 v Republic of Nauru (2018) 92 ALJR 529
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant:

JASPREET SINGH MANGAT

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 376 of 2018

Judgment of:

Judge Kendall

Hearing date:

12 August 2019

Date of Last Submission:

12 August 2019

Delivered at:

Perth

Delivered on:

16 August 2019

REPRESENTATION

Applicant:

In person

Counsel for the First Respondent:

Mr T Lettenmaier

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 376 of 2018

JASPREET SINGH MANGAT

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed in this Court on 12 July 2018, the applicant seeks judicial review of a decision made orally by the Administrative Appeals Tribunal (the “Tribunal”) on 12 June 2018. The Tribunal produced a written version of its decision on 13 August 2018.
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Temporary Business Entry (Class UC) Subclass 457 visa (the “visa”). The Tribunal was not satisfied that the applicant met cl.457.223(4)(a) of the Migration Regulations 1994 (Cth) (the “Regulations”), which requires that, at the time of the Tribunal’s decision, the applicant is the subject of an approved nomination by a standard business sponsor.
The applicant now seeks judicial review of the Tribunal’s decision. This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show jurisdictional error on the part of the Tribunal.
In writing this judgment, the Court has referenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2227
Decision Date: 16 August 2019

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) regarding a Temporary Business Entry (Class UC) Subclass 457 visa. The applicant, Mr. Mangat, had been nominated by Trustee for Five Starlettes Trust for the position of a Café or Restaurant Manager. The Department had approved this nomination on 4 April 2016. The AAT affirmed the Department's decision to refuse the visa.

The primary legal issues before the court were whether the applicant had been given adequate notice of the determinative issue that led to the Tribunal's decision, and whether transitional provisions applied in a manner that would have altered the outcome. Specifically, the court had to consider if the Tribunal had erred in law by affirming the refusal based on the applicant not being the subject of an approved nomination that had not ceased at the time of the Tribunal's decision.

The court found that the Tribunal had not committed jurisdictional error. The Tribunal had, in its letter of 11 April 2018, invited the applicant to provide information regarding whether he was the subject of an approved nomination and met specific clauses of the Migration Regulations. Furthermore, during the hearing, the Tribunal explicitly raised the issue of clause 457.224(4)(a), which requires an approved nomination by a standard business sponsor that has not ceased. The applicant himself provided evidence confirming his awareness that the nomination had ceased on 5 April 2017 and that he was not the subject of an approved nomination that had not ceased at the time of the Tribunal's decision. The court concluded that the applicant was sufficiently put on notice of the issue and had failed to demonstrate that he met the relevant criteria.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Relevantly, paragraphs [2]-[11] of the Tribunal’s decision provide as follows:2. The applicant was nominated by Trustee for Five Starlettes Trust for the position of a Café or Restaurant Manager (ANZSCO 141111). The Department approved the nomination on 4 April 2016 and the applicant submitted a copy of the Nomination approval letter to the tribunal with his review application.3. On 11 April 2018, the tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations and information that the applicant meet the cl. 457.223(4)(aa) of the Regulations.4. With the same letter, the tribunal invited the applicant to provide information in writing to demonstrate that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Café or Restaurant Manager by reference to the applicant’s formal education and relevant work experience.5. The applicant provided some of the requested information to the tribunal, but not written information that he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.6. During the course of the hearing, the tribunal raised an additional issue with the applicant. The tribunal explained the requirements of cl.457.224(4)(a) which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.7. The applicant provided to the tribunal a copy of the nomination approval letter which stated that the Department approved the nomination lodged by Five Starlettes Trust on 4 April 2016 and that the approved nomination ceases 12 months after the day of approval. The applicant confirmed in his evidence that he was aware that the nomination ceased on 5 April 2017. He stated that he believed that his prospective employer was unable to lodge new business nomination after that day. He gave evidence that, despite the approval of nomination applications, he did not commence employment with the sponsoring business.8. In his evidence given at the hearing the applicant stated that, at the time of the tribunal decision, he is not the subject of an approved business nomination that has not ceased. He also stated that there is no pending business nomination for the temporary work visa before the Department.9. He gave evidence that he had applied for the permanent visa (of shore visa application) under Regional Sponsored Migration Scheme (RSMS) where he nominated occupation of a Customer Service Manager. The decision on this visa application is still pending with the department. When I asked the applicant whether his occupation is Café or Restaurant Manager (as nominated for the purposes of applying for a Subclass 457 visa) or Customer Service Manager (as nominated in the RSMS visa application), he answered ‘both’.10. At the hearing on 12 June 2018 the tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.STATEMENT OF DECISION AND REASONS11. Based on the evidence before me, including your oral evidence, I am not satisfied that you meet clause 457.223(4)(a), which requires that at the time of my decision you are the subject of an approved nomination by a standard business sponsor. For that reason I am affirming the decision made by the department.

Ratio Decidendi

Legal Principle Established

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