Patel v Minister for Home Affairs
[2019] FCCA 1823
•25 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1823 |
| Catchwords: MIGRATION – Regional Employer Nomination visa – decision of Administrative Appeals Tribunal – where employer nomination refused – where applicants failed to meet mandatory criterion – where applicants assert error in nomination decision and not visa decision and nomination decision not the subject of a review – where judicial review application seeks review of visa decision alone – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 476 Migration Regulations 1994 (Cth), reg.5.19, item 1114C of sch.1, cll.187, 187.233 |
| 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 |
| First Applicant: | URMI PRAGNESHKUMAR PATEL |
| Second Applicant: | NISHITH VINODCHANDRA PATEL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 611 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 25 June 2019 |
| Date of Last Submission: | 25 June 2019 |
| Delivered at: | Perth |
| Delivered on: | 25 June 2019 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Counsel for the First Respondent: | Ms A Coole |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicants pay the first respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 611 of 2018
| URMI PRAGNESHKUMAR PATEL |
First Applicant
| NISHITH VINODCHANDRA PATEL |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-tempore; Revised from transcript)
Introduction
By application filed in this Court on 15 November 2018, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 5 November 2018.
The Tribunal’s decision affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicants a Regional Employer Nomination (Permanent) (Class UC) Direct Entry stream visa (the “visa”).
The applicants now seek 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 applicants must show jurisdictional error on the part of the Tribunal.
The second applicant is the husband of the first applicant. He was a member of the “family unit” as per the first applicant’s visa application. He was described as a “dependant applicant”.
The Court had before it the applicants’ application, an affidavit sworn by the first applicant on 9 November 2018, a Court Book (“CB”) numbering 163 pages and marked as Exhibit 1 and a written outline of submissions filed by the Minister on 4 June 2019.
The applicants were not legally represented today. Both applicants addressed the Court. It is most unfortunate that the applicants were not able to get legal assistance. It would have greatly assisted them in relation to whether or not they should have even advanced this case. That is not a criticism of the applicants. It is, unfortunately, a reflection of the complexities of appeals of this sort for unrepresented litigants.
Background
The Minister’s submissions at [2]-[6] provide a chronology of this matter. That summary was not disputed. The Court adopts that summary as its own, with minor alterations as follows.
The first and second applicant are citizens of India (CB 90).
On 21 September 2015, the applicants applied for the visa. The first applicant stated that she was nominated by The Threading Company Pty Ltd (CB 1).
On 27 May 2016, the first applicant was advised that the nomination submitted by The Threading Company Pty Ltd had been refused and that, as such, the applicants’ visa could not be approved (CB 87-90).
The applicants were advised they could withdraw the application or, alternatively, the application would be refused and they could apply for review at the Tribunal level.
On 19 July 2016, a delegate of the Minister refused to grant the applicants the visa on the basis the applicants did not meet cl.187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as The Threading Company Pty Ltd were not the subject of an approved employer nomination (CB 102).
On 28 July 2016, the applicants, with the assistance of a migration agent, applied to the Tribunal for review of the delegate’s decision (CB 106). It appears the same agent also was representing The Threading Company Pty Ltd in a review before the Tribunal in relation to the nomination issue (CB 115).
The applicants and their representative appeared before the Tribunal on 1 August 2018 to give evidence and present oral arguments (CB 142). The applicants’ hearing before the Tribunal was listed with the review of The Threading Company Pty Ltd.
On 9 October 2018, the Tribunal affirmed the decision not to approve The Threading Company Pty Ltd nomination.
On 17 October 2018, the Tribunal invited the applicants to comment on this decision.
The Tribunal advised that, in light of the nomination decision, the Tribunal might find that the applicants do not meet the requirements of the visa (CB 150-151).
It appears that nothing further was received from the applicants in response to this (CB 157 at [14]).
On 5 November 2018, the Tribunal affirmed the decision of the delegate to refuse to grant the applicants the visa (CB 155).
Tribunal Decision
The Tribunal’s decision is brief. It was accurately summarised at [9] in the Minister’s submissions. In effect, the Tribunal found that, as the nomination made by The Threading Company Pty Ltd had been refused by the Department and that decision affirmed by the Tribunal, sub-cl.187.233(3) was not met (CB 157 at [15]). Further, the second applicant did not make any claims to have been nominated and no claims were made in respect of the other visa streams (CB 157 at [16]-[18]). As such, the Tribunal had no choice but to refuse the visa.
Relevantly, the Tribunal’s decision provides:
9.Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
10.In addition, this criterion also requires that:
• the person who will employ the applicant is the person who made nomination
• the nomination has been approved and has not been subsequently withdrawn
• there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
• the position is still available to the applicant, and
• the visa application was made no more than six months after the nomination of the position was approved.
11.The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the nominator The Threading Company Pty Ltd lodged an application for approval of a nomination. The nomination application was refused by the delegate on 17 May 2016. The delegate in this case concluded therefore that the applicant does not meet cl.187.233(3) which requires that the Minister has approved the relevant nomination.
12.The Threading Company Pty Ltd sought review of the decision to refuse the nomination. The Tribunal combined the hearings for the nominator and the applicant. The Tribunal explained to the applicant that if it affirmed the decision to refuse to approve the nomination, the applicant would not meet the requirement that the nomination has been approved. It explained that, in those circumstances, it would write to the applicants seeking their comments or response.
13.On 9 October 2018 the Tribunal affirmed the decision to refuse to approve the nomination application, made by The Threading Company Pty Ltd, for approval of a nomination in the Direct Entry stream.
14.On 17 October 2018 the Tribunal wrote to the applicants under s.359A inviting their comments on, or response to, the information that on 9 October 2018 the Tribunal affirmed the decision to refuse to approve the nomination application made by The Threading Company Pty Ltd. The Tribunal explained that this information is relevant because if relied on the Tribunal would find that the applicant does not meet cl.187.233(3) and it would affirm the Department’s decision. The response was due on 31 October 2018. The applicants did not respond.
15.On the basis of the evidence before it, the Tribunal finds the nomination made by The Threading Company Pty Ltd, the nomination referred to in cl.187.233(1), has been refused. Therefore the nomination has not been approved and cl.187.233(3) is not met.
16.There is no evidence before the Tribunal to indicate that the second named applicant meets the requirements of cl.187.233.
17.Therefore, cl.187.233 is not met.
18.The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.
Proceedings in this Court
The applicants’ application for judicial review contained one ground:
1. Jurisdictional error has occurred as the primary decision maker has erred by misinterpreting, misunderstanding or misapplying the applicable law under the following sections of the Migration Regulations (1994) specifically the following:
Migration Regulations (1994) subparagraph 5.19(4)(h)(ii);
Migration Regulations (1994) subparagraph 5.19(4);
Migration Regulations (1994) Paragraph 1114C(3)(d) of Schedule 1; and
Migration Regulations (1994) Clause 187.233 of Schedule 2
The first applicant’s affidavit contained four paragraphs. Paragraphs 1-3 simply recite the factual background. Paragraph 4 repeats the sole ground of review as above.
The applicants were afforded an opportunity by a Registrar of this Court (in orders dated 23 January 2019) to file an amended application, any affidavits and a written outline of submissions. The applicants did not file any further materials. This is not a criticism of the applicants. The non-filing of further materials by applicants who are not legally represented is common
At the hearing today the applicants appeared on their own behalf.
Noting the remarks of the Federal Court (more recently in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7]), that an unrepresented applicant or applicants should be given an opportunity to explain their grounds of review or what they perceive the Tribunal did wrong, the Court gave the applicants the opportunity to make oral submissions. The first applicant did so on her own behalf and on behalf of the second applicant. The second applicant also assisted and made some oral submissions.
To assist the applicants, the Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the decision-maker ignores relevant material: Craig at [198];
c)where the decision-maker relies on irrelevant material: Craig at [198];
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained to the applicants what the Court cannot do. It was explained that this Court cannot undertake what is referred to as “merits review” This Court cannot grant them the visa they are seeking. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
Unfortunately, the applicants were unable to provide any further assistance to the Court today in relation to the question of whether the Tribunal made any mistakes in relation to the assessment of whether they should be given the relevant visa.
The applicants spoke to the nomination decision – not the decision relevant to their visa. It is the Court’s opinion that this occurred because, as is common in matters of this sort, the applicants were confused as to the distinction between the nomination decision and the decision in relation to their specific visa. The nomination decision is not on appeal to this Court. The visa decision is.
It is unfortunate that, at no point prior to these proceedings no one appears to have explained to the applicants this distinction and what the Court can and cannot look at. Had this occurred, it is the Court’s opinion, having now heard from the applicants, that they likely would not have brought these proceedings.
In the circumstances, because the applicants were unable to articulate any concerns about the Tribunal’s visa decision (as before this Court), the Court can only look at the actual terms of the application as filed and see if it can see any concerns that might arise in relation to the Tribunal’s decision.
For the reasons that follow, the Court is unable to find any jurisdictional error.
Consideration
Regulation 5.19(4)
Regulation 5.19 of the relevant Regulations outlines the requirements for the approval of an employer nomination.
For the Direct Entry Stream nomination (which is what The Threading Company Pty Ltd was required to satisfy), reg.5.19(4) prescribes the requisite requirements.
The applicants refer specifically to reg.5.19(4)(h)(ii) of the Regulations, which provides:
(4) The Minister must, in writing, approve a nomination if:
…
(h) either:
…
(ii) all of the following apply:
(A) the position is located in regional Australia;
(B) there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C) the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D) the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub‑subparagraph;
(E) the business operated by the nominator is located at that place;
(F) a body that is:
(I) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(II) located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub‑subparagraphs (B) and (C).
The applicants are (understandably) misguided in relation to the effect of this regulation.
Regulation 5.19 applies to the employer nomination; that is, it applies to The Threading Company Pty Ltd. It is irrelevant to the applicants’ application before this Court. In effect, the Tribunal had no need to consult reg.5.19 in determining if the applicants met the criterion for the grant of their visa – not the nomination.
While the nomination and the visa decision are linked (hence, the confusion on the part of the applicants), reg.5.19 was not relevant to the applicants’ review application before the Tribunal. Nor is it relevant here.
The applicants were required to meet the criteria in cl.187 of sch.2 of the Regulations. That was the only issue before the Tribunal in relation to the visa relevant to the current proceedings before this this Court.
The issue for the Tribunal was whether the position to which the visa application related was the subject of an approved nomination. The Tribunal found, in a separate decision, that no nomination existed. That meant that no visa could be given to the applicants.
The scheme of the provisions is such that decisions concerning the approval of a nomination appointment must be made independently of the decision on an application for the visa: Tian & Ors v Minister for Immigration & Citizenship [2008] FCA 1334 at [32].
In effect, the applicants’ submissions before this Court rely on evidence and argument in relation to the nomination decision. Unfortunately, the nomination decision has not been appealed to this Court. The Court cannot comment upon whether the Tribunal misinterpreted, misunderstood or misapplied reg.5.19 in respect of the nomination decision, as that is not a decision relevant to the issues before this Court.
Item 1114C(3)(d) of Schedule 1
Item 1114C outlines the requirements necessary to lodge a valid visa application (ie, prescribed form, fee payment etc). In particular, item 1114C(3)(d) of sch.1 requires:
(d) An applicant seeking to satisfy the primary criteria must declare in the application that the position to which the application relates is a position nominated:
(i) under regulation 5.19; or
The applicants were asked to clarify or explain any concerns they had in relation to that particular item. Not surprisingly, given the complexity of the entire process of this sort, the applicants were not able to explain to the Court any concerns that they had.
It could be argued that the applicants are suggesting that their visa application should not have been accepted by the Department as the nomination was not approved.
Item 1114C(d) does not require the nomination to be approved. It requires the position the applicants are applying for to be the subject of a nomination. The Threading Company Pty Ltd made an application for nomination. Hence, on the evidence, item 1114C(d) was satisfied at the time of the visa application.
The applicants bear the onus of satisfying the Court that there is jurisdictional error in the Tribunal decision: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15]. Here, the Court has nothing before it today which suggests that the Tribunal either misapplied, misinterpreted or misunderstood item 1114C of sch.1 in so far as it relates to the visa decision.
No jurisdictional error has been identified in respect of Item 1114C in so far as it relates to the visa decision.
Clause 187.233
Clause 187.233 was the determinative clause in the Tribunal’s refusal of the applicants’ visa. It was also determinative in the delegate’s decision. It provides as follows:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
In particular, the Tribunal found the applicants did not meet cl.187.233(3) as The Threading Company Pty Ltd had been denied nomination approval.
Clause 187.233 is a “time of decision” criterion; that is, the applicants had to satisfy the criterion at the time of decision. There was no dispute that The Threading Company Pty Ltd nomination had not been approved at the time of the Tribunal’s decision. Hence, regrettably, once this was evident, the applicants did not meet the requirements of the visa.
In those circumstances, it cannot be said that the Tribunal has misapplied, misinterpreted or misunderstood cl.187.233. Once the Tribunal had found that a nomination was not approved by the Minister under cl.187.233(3), the only finding open on the facts was that the applicants themselves could not meet the criteria in cl.187.233.
Put simply, the success of the applicants’ visa rested upon the approval of the nomination. Once the nomination was refused, there was no option but to refuse the applicants’ visa application.
No error of the sort alleged here can be seen on the face of the Tribunal’s decision.
Conclusion
On the evidence, the applicants simply did not satisfy the mandatory statutory criteria. As such, the only option for the Tribunal was to affirm the delegate’s decision to refuse to grant the applicants the visa.
In relation to the visa decision (which is the only decision currently on appeal to this Court), the Court finds that there is no jurisdictional error identified by the applicants.
The application is, accordingly, dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 1 July 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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