Patel v Minister for Immigration
[2020] FCCA 808
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 808 |
| Catchwords: MIGRATION – Employer Nomination (subclass 186) visa – decision of the Administrative Appeals Tribunal – where the applicants had no approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.5, div.5, ss.359A, 360, 476 Migration Regulations 1994 (Cth), cl.186.223 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 |
| First Applicant: | DARSHANKUMAR RAMANBHAI PATEL |
| Second Applicant: | PINALBEN VITHTHALBHAI PATEL |
| Third Applicant: | SHIVAM PATEL |
| Fourth Applicant: | HANI DARSHANKUMAR PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 286 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 7 April 2020 |
| Date of Last Submission: | 7 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second, third and fourth applicants |
| Counsel for the First Respondent: | Ms E Tattersall |
| 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 286 of 2019
| DARSHANKUMAR RAMANBHAI PATEL |
First Applicant
| PINALBEN VITHTHALBHAI PATEL |
Second Applicant
| SHIVAM PATEL |
Third Applicant
| HANI DARSHANKUMAR PATEL |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in these proceedings are citizens of India. The first applicant and the second applicant are husband and wife. The third applicant is their son. The fourth applicant is their daughter.
On 6 September 2016, the applicants applied for an Employer Nomination (subclass 186) visa (the “visa”). The first applicant was the primary applicant. The other applicants were members of the family unit (Court Book (“CB”) 1-18).
The first applicant’s nominated occupation was as a “Welder (First Class)” and he was to be sponsored by V.B Richards & W.A Richards (the “sponsor”).
Once the sponsor’s sponsorship application was refused this meant, in effect, that the first applicant was not the subject of an approved nomination.
On 7 April 2017, the first respondent’s (the “Minister”) Department wrote to the applicants and asked them to comment on the fact the sponsor’s application had been refused. (CB 42-45). No response was received from the applicants.
On 22 May 2017, the delegate refused to grant the visa to the applicants (CB 46-56). The delegate found that the first applicant did not meet cl.186.223 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not the subject of an approved nomination. Further, as the first applicant did not meet the primary criteria, the other applicants could not be granted the visa.
On 30 May 2017, the applicants applied for review of that decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 57-59).
On 27 June 2019, the Tribunal made a decision to affirm the decision to refuse a nomination in respect of V.B Richards & W.A Richards. That decision has never been (and is not now) the subject of an application for judicial review in this Court.
On 1 July 2019, the Tribunal invited the applicants to comment on information it considered would be a part of the reason for affirming the delegate’s decision to refuse to grant the applicants the visa (CB 66-69). The particulars of that information were that the sponsor’s application had been refused by the Tribunal on 27 June 2019 and, as a result, the first applicant was not the subject of an approved nomination.
On 15 July 2019, the applicants’ migration agent indicated that the Tribunal should proceed to make the decision on the information before it (CB 70).
On 23 July 2019, the Tribunal affirmed the delegate’s decision to refuse the applicants the visa (CB 74-78).
The applicants have now appealed that decision to this Court.
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into a jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 17 paragraphs. One page extracts cl.186.223 of the Regulations in full.
At [1]-[7], the Tribunal summarised the procedural background of the matter.
Relevantly, the Tribunal wrote as follows:
8.No hearing was held in this matter. A letter was sent to the applicants via their authorised representative on 1 July 2019 by email. This letter followed a decision in a matter (1709145), which related to the nomination of the relevant position by the applicant’s employer. The particulars of the information in the letter, and its relevance to the review, were provided pursuant to section 359A of the Act:
“The particulars of the information are:
• On 27 June 2019, the Tribunal made a decision to affirm a decision to refuse a nomination in respect of V.B Richards & W.A Richards. Consequently, the decision made by the Department of Immigration and Border Protection on 22 May 2017, to refuse the nomination stands.
In relation to the primary visa applicant, Mr Darshankumar Ramanbhai PATEL
This information is relevant to the review because in deciding whether Mr Patel satisfies the requirements of clause 186.223(3) of Schedule 2 of the Regulations, that clause requires that the Minister has approved the nomination (being the nomination referred to in paragraph 186.223(1)).
If the Tribunal relies on this information in making its decision, it will make a finding that there is no approved nomination in which Mr Patel is the nominee for the purpose of cl.186.223. This may lead the Tribunal to find that that criterion is not met. This is an impediment to the visa being granted by the Department of Immigration and Border Protection for Mr Patel.
Subject to your comments or response, this would be the reason, or a part of the reason, for the Tribunal affirming the decision under review.
In relation to the secondary visa applicants, Mrs Pinalben Viththalbhai PATEL, Master Shivam PATEL and Miss Hani Darshankumar PATEL
The information is relevant to the review because cl.186.311 requires that the secondary applicants are members of a family unit of a person (the primary applicant) who holds a subclass 186 visa on the basis of satisfying the primary criteria for the grant of the visa. As Mr Patel would not satisfy the primary criteria this would mean that Mrs Pinalben Viththalbhai Patel, Master Shivam Patel and Miss Hani Darshankumar Patel would not satisfy the secondary criteria for the grant of the visas, namely cl.186.311.
Subject to your comments or response, this would be the reason, or a part of the reason, for the Tribunal affirming the decision under review.”
9.A response or comments were invited in writing by 15 July 2019. The Tribunal received a response from the applicants’ representative by the due date. The response indicated that the applicants did not have any further information to provide the Tribunal. The Tribunal was also advised that the review applicants consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
10.Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.
11.In addition, this criterion also requires that:
•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.
The Tribunal then stated as follows:
12. On the basis of the information before it, the Tribunal finds that on 27 June 2019, the Tribunal affirmed a decision of the Department to refuse a nomination in respect of V.B Richards & W.A Richards, in which the applicant is the nominee.
13. Accordingly, the Tribunal finds that the nomination made by the applicant’s proposed employer has not been approved.
14. Therefore, cl.186.223 is not met.
The Tribunal further noted that the first applicant had not claimed that he met the requirements of any other stream of the visa (at [15]). Hence, the Tribunal concluded, the decision had to be affirmed.
Further, as the first applicant did not meet the primary criteria, the other applicants were unable to meet the criteria for the visa (at [16]).
In light of the above, the Tribunal affirmed the delegate’s decision not to grant the applicants the visa they were seeking.
Proceedings in this Court
This matter was conducted via teleconference on 7 April 2020. In light of the current health advice, the Court was of the view this was an appropriate manner in which to conduct the hearing. The applicants did not request nor require an interpreter. The Court is satisfied that the hearing provided a meaningful opportunity for both parties to participate and engage in the proceedings.
The Court had before it the applicants’ application for judicial review dated 30 July 2019, an affidavit of the first applicant dated 30 July 2019, correspondence confirming service of documents to the applicants (marked as Exhibit 1), a Court Book numbering 82 pages (marked as Exhibit 2) and an outline of written submissions from the Minister dated 18 March 2020.
At the hearing, the first applicant appeared on behalf of the other applicants. The Court confirmed with him that he had received and reviewed the Court Book. When asked if he had a copy of the Minister’s submissions, the applicant was initially unable to confirm that he had a copy of the submissions. The Minister provided correspondence (Exhibit 1) which indicated that the applicant had been served the submissions on 18 March 2020. Further, the applicant responded to that email on 19 March 2020.
As the applicant was not sure if he had reviewed the submissions, the Court adjourned and caused a copy of the submissions to be sent electronically to the applicant. These were received and the applicant indicated he had read the submissions and was ready to proceed. The Court resumed the hearing and, in due course, Counsel for the Minister summarised the Minister’s submissions and the applicant was given a further opportunity to respond.
The Court is satisfied that the applicant was able to participate effectively in the hearing of this matter and thanks him for the clarity of his oral submissions.
The applicants’ judicial review application contains three grounds of review that provide:
1. EXCEPTIONAL CIRCUMSTANCES
2. BREACH OF EMPLOYMENT CONTRACT
3.MISCARRIAGE OF JUSTICE
The first applicant filed an affidavit in support of the judicial review application. Relevantly, that affidavit provides:
My Employment Nomination Scheme visa Reference No. 1709145 (AAT case number) has been refused for the failure of my employer not paying the full amount required to be paid by the participating employer for the Australian training Fund. For the failure of short payment of approx. of $ 1900 from the total payment. This was part of a judgemental error from my employer and was nothing to do so ever from my end.
The decision is very harsh and is not only going to affect me but it will also affect my wife, my daughter who been here since age of 7 years and now she is in year 10 and performing excellent in her academic. My other children is born in Western Australia on 30/07/2010 and grown up in Australian lifestyle and culture, and currently in year 3.
As a result, I believe my situation falls under exceptional categories as all my family members life is at stake at the decision provided by AAT.
I was interviewed by [omitted] and [omitted], then I was offered a position as first class welder and after seeing my proficiency in work, they offered me a 4 years contract…
…
I was unaware that my employer has to pay Training Australia at least 1 % of the payroll of the business, in the provision of training to employees of the business. The AAT notes that the $ 2000 spent by the business on training only attempted to satisfy the first limb of the test within IMMI 13/030. This is because it was allotted to an industry training organization, and not generally in the provision of training to its employees.
…
As my employer was notified that my visa has been refused by Aussie Migration then [omitted] on phone call told me that I am not on the roster anymore and not required to come to work from next day. This affected me a lot but since I was in stress, confused and not sure what to do I obliged to my employer. As I have informed Aussie Migration verbally that I have four years contract with them they cannot break my contract. Although I had working rights [omitted] did not let me complete the 4 years contract. As I was hoping to get MRT in my favour I didn't took any action against my employer. I have attached a copy of the contract for your reference. I was never given any written notice about the cancellation of my contract. My employer has made so many errors on their part and for which me and my family are getting penalized which is not right.
The applicants were given an opportunity to file any amended application, supporting affidavits and an outline of written submissions. No further materials were filed.
The applicants appeared before the Court without legal representation. The first applicant spoke on behalf of the other applicants.
Noting that the applicants were unrepresented, the Court allowed the first applicant to elaborate on, and further particularise, the grounds of review. He was also asked to outline any concerns he had more broadly with the Tribunal’s decision. This is now the standard procedure in this Court following the Federal Court’s decision in: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him that this Court can only turn its attention to whether the Tribunal fell into jurisdictional error. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, 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 & Anor (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]; 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) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the first applicant submitted that he had abided by the law throughout his employment. He stressed that he “did nothing wrong”. Rather, “it was [his] employer’s mistake”. He also told the Court that he and his “family are suffering because of this mistake”, he went to many lawyers who said he had no case and he does not understand why he is, in effect, suffering because of his employer’s actions.
The applicant then indicated that he wished to ask his sponsor why they did not “pay” the money for training (which, it appears, was one of the reasons the sponsor’s nomination was refused). The first applicant asked the Court for a second hearing so he could do this. The Court indicated that the matter had been on foot for some time and there would not be a second hearing. It was explained that the applicants had been given an opportunity to provide further evidence and had not done so. Further, and importantly, it was explained that the Court has no jurisdiction in relation to the sponsor’s nomination decision (which was, in fact, what the first applicant was seeking to challenge). Finally, the Court explained that the Court does not doubt the first applicant when he says he “did everything right”. Unfortunately, none of this evidence is relevant to the proceedings before this Court and do not evidence jurisdictional error in relation to the applicants’ visa application.
The first applicant then expressed concerns about his daughter’s visa status. The Court indicated that it could not assist him in this regard and advised that he contact a migration agent for advice and assistance.
Unfortunately, as is common in proceedings of this sort, the first applicant’s oral submissions were misguided. Applicants are often of the view that they can challenge decisions made in relation to the sponsor. Unfortunately, the only decision that the Court can review in this matter is that which relates to the applicant’s visa category.
Consideration
Ground 1
1. EXCEPTIONAL CIRCUMSTANCES
The first applicant’s affidavit outlines the considerable hardship that he and his family will face if their visa is refused. The first applicant states that his daughter is excelling at school and his son, who was born in Australia, will have difficulty adjusting. The first applicant states that his children’s “future prospects are in limbo and under desperation” and, as such, there are “exceptional circumstances” for them to be granted the visa.
At the hearing of this matter the applicant further explained that the “exceptional circumstances” he is referring to relate to the fact that what happened with his employer was not his fault and his family will suffer.
The Court is sympathetic to the concerns raised by the first applicant. Unfortunately, there is no discretion to waive cl.186.223 of the Regulations because of “exceptional circumstances”. The first applicant was required to meet cl.186.223. Notwithstanding any “exceptional circumstances”, the failure to meet cl.186.223 (because his sponsor’s nomination application had been refused) meant that he could not be granted the visa. As a result, the other applicants were also denied the visa.
Ground 1 does not evidence jurisdictional error on the part of the Tribunal and is, accordingly, dismissed.
Ground 2
2. BREACH OF EMPLOYMENT CONTRACT
This ground does not allege any jurisdictional error on the part of the Tribunal.
When read together with the first applicant’s affidavit, ground 2 is, in effect, an allegation that the sponsor breached employment obligations owed to the first applicant. The first applicant submitted at the hearing that he had worked for three years without issue and then had no contact with the employer after the nomination decision.
Whether the first applicant has other enforceable legal rights in relation to the conduct he complains of is a matter that the applicants may wish to explore. Unfortunately, this Court cannot assist the first applicant in relation to this matter as it does not go to the issue jurisdictional error and is not relevant to the application for judicial review now before the Court.
Ground 2 is, accordingly, dismissed.
Ground 3
3.MISCARRIAGE OF JUSTICE
The applicants have not identified what “miscarriage of justice” they believe has occurred.
In its duty to self-represented litigants, the Court has remained astute and alert to the possibility of any legal error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Here:
a)the Tribunal complied with the procedural fairness obligations stated in pt.5, div.5 of the Act. The Tribunal put information to the applicants in accordance with s.359A and the applicants waived their right to attend a hearing pursuant to s.360(2)(b) of the Act;
b)the Tribunal correctly identified the applicable visa criteria; and
c)the Tribunal made a decision on the materials that were before it. Notably, the information before it clearly indicated that the applicant was not the subject of an approved nomination. This provided an evidentiary basis for the Tribunal to refuse the visa. Indeed, that was the only decision open to it.
Ground 3 is, accordingly, dismissed.
Conclusion
The applicants’ application for judicial review and the first applicant’s affidavit fail to identify any jurisdictional error. The Court is otherwise satisfied that no jurisdictional error arises.
Further, the Court notes that in circumstances where the sponsor’s nomination has been refused and there is no evidence that that application is the subject of judicial review, there would be no utility in remitting the matter to the Tribunal. The first applicant would still be unable to meet the criterion relevant to the visa he seeks.
As the Court has earlier observed, the applicants in this matter have undoubtedly done “everything right”. Unfortunately, within the context of this particular type of visa, being granted the visa is conditional, or reliant upon, the employer being approved as a sponsor. The Court cannot assist the applicants in this regard.
The application for judicial review is, accordingly, dismissed.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 9 April 2020
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