Matta v Minister for Immigration

[2014] FCCA 3165

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATTA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3165

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error revealed – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Schedule 2, cls.857.213(a) and 857.221 and r.5.19(4)

First Applicant: SUKHPREET KAUR MATTA

Second Applicant: KAMALJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 251 of 2013

Judgment of: Judge Simpson

Hearing date: 8 May 2014

Date of Last Submission: 8 May 2014

Delivered at: Adelaide

Delivered on: 8 May 2014

REPRESENTATION

The Applicants In person

Solicitors for the Respondents: Mr P d'Assumpcao for the Australian Government Solicitors

ORDERS

1. The application be dismissed.

2. The name of the First Respondent be changed from Minister for Immigration and Citizenship to Minister for Immigration and Border Protection.

3. The Applicant pay the First Respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 251 of 2013

SUKHPREET KAUR MATTA

First Applicant

KAMALJIT SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Reasons settled from transcript)

1. The Applicant seeks review of a Migration Review Tribunal (“the Tribunal”) decision, which affirmed a decision of a Delegate of the Minister for Immigration and Citizenship.  That Respondent’s name has now been changed to the Minister for Immigration and Border Protection.  The decision was to refuse the Applicant an employer nominated Residence Class BW (subclass 857) Regional Sponsored Migration Scheme visa.

2. The Applicant has given detailed submissions.  She has indicated that she had received the First Respondent’s outline of submissions and had the opportunity to study it.

3. I spent some considerable time attempting to explain to the Applicant what was needed in this review application.

4. The background to this matter is helpfully summarised in the submissions that have been provided by the First Respondent and I will rely on them substantially to look at the background to the matter. 

5. The Applicant applied for the visa on 22 July 2011.  The application was made on the basis of proposed employment in the position of a cook.  For the purpose of the criterion in cl.857.213(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”), the Applicant was nominated by an employer, namely Ghandi Indian Café Proprietary Limited (“Ghandi”).

6. On 6 January 2012, a Delegate for the Minister refused Ghandi’s application for approval of the nominated position because the nomination did not satisfy r.5.19(4) of the Regulations.  Ghandi applied to the Tribunal for review of this decision but, ultimately, withdrew its application on 16 May 2013.

7. On 9 January 2012, the Department invited the Applicant to comment on adverse information.  Namely that Ghandi’s application for approval of the nominated position as a cook had been refused.  On 7 March 2012, the Delegate of the Minister refused the application on the ground that the Applicant did not satisfy the requirements under cl.857.221 of Schedule 2 of the Regulations because the employer’s nomination was refused and the appointment had, therefore, not been approved.

8. On 23 March 2012, the Applicant applied to the Tribunal for review of the Delegate’s visa refusal decision.  On 4 June 2013, the Tribunal telephoned the Applicant to advise her that Ghandi had withdrawn its application for review of the nomination refusal decision.  The Applicant informed the Tribunal that she wanted to proceed with her application. 

9. On 20 June 2013, the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in his case.  The hearing was scheduled to take place on 17 July 2013. 

10. On 17 July 2013, the Applicant attended the scheduled hearing before the Tribunal. The Tribunal ultimately affirmed the decision under review on the basis that the Applicant did not satisfy cl.857.221 of Schedule 2 to the Regulations. Clause 857.221 requires that, at the time of the decision, the employee nomination has been approved and has not been withdrawn, continues to satisfy the criteria for approval, and is available to the Applicant.

11. On 19 August 2013, the Applicant applied for judicial review of the decision to this Court. 

12. Perhaps what I should do firstly is to identify the grounds that the Applicant relies upon in her application. 

13. There are four grounds and I will read them in turn:

    “1.The Tribunal committed jurisdictional error by not considering that the applicant no. 1 had a valid nomination from an employer in place which was the pre requisite for grant of Sub Class 857 Visa.

    2.The Tribunal failed to take new evidence while affirming the decision of the case officer of the Department.

    3.The Tribunal did not give any opportunity to the applicant to prove that the case officer had wrongly refused to approve the nomination application lodged by the employer of the applicant.

    4.The Tribunal failed to accord procedural fairness to the applicant by not supplying a copy of the request made by the employer of the applicant by which the nomination application was allegedly withdrawn from the Tribunal.”

14. There is a section of the reasons that were given by the Tribunal that I would like to include in these reasons as I think it answers many of the questions that are raised by the application.

15. The Tribunal had this to say:

    “6.The Tribunal finds, on the basis of the visa application form lodged by Ms Matta and the employer nomination application form 1054, that the Applicants have indicated that they wish to apply for subclass 857 visas, rather than subclass 856 visas.

    7.The main Applicant for a subclass 857 visa must satisfy various requirements at the time that the application is made, including cl.857.213(a) which requires the Applicant to have been nominated by an employer, in accordance with r.5.19(4), for an appointment in the business of that employer.

    8.The Tribunal finds, on the basis of the Employer Nomination form (form 1054) in the Department’s file, that the employer nominated Ms Matta for the position of Cook in its business at Brooklyn Park. The Tribunal finds that this is the appointment mentioned in cl.857.213(a).

    9.The main issue in the present case is whether the first Applicant, Ms Matta, meets the requirement in clause 857.221. Clause 857.221 is only satisfied if, at the time of the decision, the appointment mentioned in paragraph 857.213(a):

    “has been approved;  and has not been withdrawn;  and continues to satisfy the criteria for approval;  and is still available to the Applicant”.

    10.Ms Matta appeared before the Tribunal on 17 July 2013 to give evidence and present arguments.

    11.Ms Matta provided evidence that she worked at Ghandi Indian Cafe from July 2010 until February 2012.  She said that in February 2012 the owners of Ghandi Indian Cafe had a disagreement and closed the business, and she was not given a work reference

    12.Ms Matta said that Ghandi Indian Cafe had nominated her for a visa, but the nomination application was refused by the Department.  She said that she agrees that the appointment mentioned in the nomination has not been approved.

    13.During the hearing the Tribunal told Ms Matta that it had some information which it would ask her to comment on.  The Tribunal said that the Delegate’s decision stated that Ghandi Indian Cafe had lodged a nomination for the position of a Cook and had nominated her for the position, and the nomination application was refused on 6 January 2012.  The Tribunal said that the Delegate’s decision states that as a result the appointment mentioned in paragraph 856.213(a) has not been approved and she does not meet the requirements for Class BW visa. 

    14.The Tribunal said that secondly, on 22 May 2013 the Tribunal received written notification from Ghandi Indian Cafe that it wished to withdraw the review application that it had lodged in respect of the refusal of its employer nomination application made in relation to her.  The Tribunal said that on 23 May 2013 the Tribunal accepted the Applicant’s withdrawal and decided that the Tribunal no longer had jurisdiction in relation to the matter.

    15.In accordance with s 359AA of the Act, the Tribunal said that this information is relevant to the review because it indicates, subject to the first Applicant’s comments, that the employment nomination application, made in relation to her by Ghandi Indian Cafe was refused by a Delegate on 6 January 2012, and Ghandi Indian Cafe withdrew its review application on 22 May 2013.

    16.The Tribunal said that if it relies upon this information it may find, no the basis of this and other information, that the employment nomination application made in relation to her by Ghandi Indian Cafe was refused by a Delegate on 6 January 2012, and Ghandi India Cafe withdrew its review application on 22 May 2013, and the appointment mentioned in cl.857.213(a) has not been approved, and the first Applicant therefore does not meet the requirements in cl.857.221. The Tribunal requested the first Applicant to comment on this information. The Tribunal said that if the first Applicant needs further time in which to provide her comments, she could ask the Tribunal for further time, and the Tribunal would consider her request. The first Applicant chose to comment immediately as she was entitled to. (As she was entitled to.)

    17.The first Applicant said that she knows that her visa application depends upon the nomination application and her former employer has withdrawn that application because his business is no more.  She said that the situation is not her fault as she relied upon her employer, and her only request is that the Tribunal delay its decision to enable the Department to make a decision on the subclass 187 visa application that she has lodged.”

16. The matters that the Tribunal indicate that the Applicant put to them, is very similar to the submissions that were put in this Court by the Applicant.

17. I should say that I spent some considerable time attempting to explain to the Applicant what was needed in an application to this Court.  I am satisfied that she has a good general understanding of what is required.  Although she has not, as far as I am aware, had any legal advice from an Australian solicitor, I understand she may have had some advice from a lawyer in India.

18. But in any event, we turn then to the grounds.  I will deal with them each in turn.

Ground 1

1. I will not repeat what that ground said, but in my view, the finding that cl.857.221 was not met was open on the evidence. On that evidence, the finding was, in my view, inevitable. In the absence of an approved nomination by an employer for the 587 visa application, the Tribunal has no option but to affirm the decision under review. The fact that the Applicant had been nominated for a subclass 187 visa by her new employer was not relevant to the visa application the subject of the review. In my view, ground 1 is without merit.

Ground 2

1. I assume this complaint to be that the Tribunal failed to consider a relevant issue that was raised by the Applicant at the hearing.  However, the Tribunal expressly stated that it had regard to the evidence given by the Applicant at the hearing, namely, firstly, that she had lodged an application for subclass 187 visa on 27 June 2013; secondly, that she had been nominated by her new employer, Harvest of India, for the subclass 187 visa; thirdly, that she has a child who was born on 6 August 2010 and she did not realise that she could include her child in her application for her subclass 857 visa.

Ground 3

1. In relation to this ground, in my view, the Tribunal appropriately determined that it did not have jurisdiction to review the application for review of the notification refusal decision after Ghandi notified it that it wished to withdraw the application.  In my view, ground 3 is without merit. 

Ground 4

1. There is no doubt that the Tribunal satisfied its procedural fairness obligations under the Act and invited the Applicant to attend a hearing.  The Tribunal notified the Applicant by telephone that the application to review the nomination refusal had been withdrawn by Ghandi.  The Tribunal explained to the Applicant, in detail, both over the telephone and at the hearing, the facts surrounding the withdrawal. 

2. The Applicant confirmed on the telephone and at the hearing that she understood that the application had been withdrawn and the nomination was approved.  She did not at any time ask the Tribunal for a copy of the document. 

3. The gravamen of the information in the document was known to the Applicant.  As noted earlier in these reasons, it cannot now be said that the Tribunal has failed to afford procedural fairness by not providing a copy of the document. 

4. In my view, ground 4 is without merit and should be dismissed.

5. The result is that the Applicant has been unsuccessful in her application and the application should be dismissed.  There will be an order accordingly.

6. I make the orders to be found at the beginning of these reasons.

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

Associate: 

Date: 7 May 2015