Patel v Minister for Immigration

[2020] FCCA 661

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 661

Catchwords:
MIGRATION – Application for judicial review – temporary business entry visa  – sponsorship application – show cause hearing – no matters of principle – no arguable case – application dismissed.

Legislation:

Federal Circuit Court Rules2001 (Cth), rr.13.03C(1)(c), 44

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl.475.223

Cases cited:

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40

First Applicant: HIREN JASHBHAI PATEL

Second Applicant: SONALBEN HIREN PATEL

Third Applicant: ARYA HIREN PATEL

First Respondent: MINISTER FOR  IMMIGRATION, CITIZENSHIP, MIGRANT SEVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 933 of 2019

Judgment of: Judge Riethmuller

Hearing date: 16 March 2020

Date of Last Submission: 16 March 2020

Delivered at: Melbourne

Delivered on: 16 March 2020

REPRESENTATION

The First Applicant appeared In Person

The Second Applicant did not appear.

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The First Applicant be appointed as litigation guardian of the Third Applicant.

3. Pursuant to rule 44 of the Federal Circuit Court Rules 2001 (‘the Rules’), the First and Third Applicant’s applications be dismissed.

4. Pursuant to rule 13.03C(1)(c) of the Rules, the Second Applicant’s application be dismissed.

5. The Applicants pay the First Respondent’s costs fixed in the sum of $1,495.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 933 of 2019

HIREN JASHBHAI PATEL

First Applicant

SONALBEN HIREN PATEL

Second Applicant

ARYA HIREN PATEL

Third Applicant

And

MINISTER FOR  IMMIGRATION, CITIZENSHIP, MIGRANT SEVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

Background

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) dated 7 February 2019.  The Tribunal affirmed a decision of the delegate of the Minister to refuse to grant the applicant a Temporary Business Entry (Class UC), subclass (457) visa. The second and third applicants’ cases rest entirely upon the first applicant’s case, as they are his wife and daughter.

2. The judicial review application in this matter was filed on 29 March 2019 and comes before me today as a show-cause hearing for the applicant to show that he has at least an arguable case. 

3. The applicant applied for the visa on 9 November 2016. At the time, he was hoping that Arun Kumar, who was trading as ‘Jim’s Mowing, Toorak’, would be his sponsor. A sponsorship application had been lodged with the Department and this was refused by a delegate on 19 September 2016.  The difficulty confronting the sponsorship application, as appears in the delegate’s decision (annexed to the affidavit of Ms Hicks filed 13 March 2020), is that the main operation of the business, which the sponsorship application related to, appeared to the delegate to be a mowing service and therefore the position did not fit the definition in ANZSCO for a Gardener (General) 362211.

4. In any event, that decision was not challenged by way of an application to the Tribunal or the Court. A subsequent nomination application was lodged, which was refused on 4 May 2017 for similar reasons. The delegate’s decision in that application was affirmed by the Tribunal on 7 February 2019 and no judicial review application is said to have been made. On 1 June 2017, a further nomination was lodged and that application was refused on 23 January 2018. The sponsor did not seek a review of that decision. 

5. In effect, the applicant confronted a situation where he had applied for a temporary business entry visa, but none of the attempts to obtain approval for a sponsor had been successful.

6. On 13 June 2017 the Minister refused the applicant’s visa application on the basis that he did not have an approved sponsor, and refused the application with respect to the second and third applicants on the basis that they were family members of the applicant, who was the primary applicant for the visa, who had been unsuccessful.

7. The Tribunal application was made on 28 June 2017. The applicant appeared before the Tribunal to give evidence and present arguments with the assistance of a Migration agent on 16 November 2018. On 8 February 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) (‘the Act’), inviting him to comment on the fact that the day before the Tribunal had affirmed the decision of the delegate made in May 2017, not to approve the proposed nomination by his sponsor. The Tribunal sought a response by 22 February 2019, but the applicant did not respond. In substance, the Tribunal notified the applicant, after the sponsorship application had been refused, of the difficulty that he confronted, and asked for submissions about that issue. Unfortunately, none were received.

8. The Tribunal proceeded to make findings, which included the following:

   13. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

   14. As the decision to refuse the nominating employer's application was affirmed by the Tribunal on 12 February 2016, and there is no evidence to suggest that the applicant is the subject of an approved nomination by a standard business sponsor, the Tribunal finds that the applicant does not meet the requirement in s.457.223(4)(a)(i).

   15. Consequently, the requirements of cl.457.223(4)(a) are not met.

9. In substance, it seems that as the applicant did not have an approved sponsor, he could not obtain the visa and therefore his application before the Tribunal was bound to fail. To the extent that there may have been some possibility that he could take further steps to arrange a sponsor, or may have needed to seek an adjournment from the Tribunal, he did not respond to the letter on 8 February 2019 advising him of the difficulties he confronted. Therefore there was no request before the Tribunal for additional time, nor any proposal put to the Tribunal as to any alternative way in which he may have been able to fulfil the visa criteria.

10. In the application for judicial review, the applicant said that his “friend” assisted him in drawing the application form after he and his friend sat down and discussed the matter. It was apparent from his almost complete inability to explain any of the bases for any of the grounds, or indeed any reason that he would say that the Tribunal made an error, that none of the grounds were drawn by him or reflected his position. In oral submissions, the applicant raised complaints about the outcome generally, pointing out that he did have a job and that he did seek to work, and that he was genuine in his desire to work the Jim’s Mowing Service at Toorak. 

11. This submission does not address any of the issues that were before the Tribunal in this case and goes only to a merits review of the Tribunal’s decision in the sponsorship application, a case which has not been the subject of judicial review proceedings.  Nonetheless, I turn to deal with each of the grounds that the applicant has set out in his application.  I propose to deal with the grounds by way of the groupings as suggested by Counsel for the Minister in written submissions, given that there are 21 separate grounds which can be conveniently grouped into seven different topics.

Grounds

Grounds 1, 2, 5, 7, 9, 13, 15 and 20

1. These grounds respectively provide as follows

   1. The Administrative Appeals Tribunal did not provide enough weight to the situation I had tried to explain while they had put more weightage on disposing of the case before them rather quickly than EXERCISE any fact finding and gathering evidence from us, the visa holders.

   2. Tribunal did not give consideration to the evidence provided so it has fall into “Jurisdiction error'”.

   5. The merits of the case should have been taken into serious consideration in its totality and the substance rather than the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.

   7. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits.

   9. The decision to give a decision without considering the application on merits was irrational, arbitrary and vitiated by jurisdictional error.

   13. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my nominated position;

   15. The Tribunal biased by the overall information and considered my case on average without giving any weight on my claims and didn't look the matter individually.

   20. Tribunal failed to exercise its jurisdiction by Jailing to consider “all aspects” of my claims

2. Each of these grounds challenges whether or not the Tribunal had regard to the evidence before it and properly engaged with that evidence in order to consider the merits of the applicant’s case. It is apparent from the Tribunal’s decision that the Tribunal were acutely aware of the importance of the applicant having an approved sponsor and that he could not obtain a visa without that. The Tribunal wrote to the applicant, asking for comments on this issue when it became apparent that he did not have an approved sponsor. In my view, the Tribunal did have regard to the relevant facts before it and there was no further evidence that it would reasonably be required to gather or seek out in a case like this.

Grounds 3 and 21

1. The second grouping of grounds relates to grounds 3 and 21 which provide as follows

   3. The Tribunal fundamentally misunderstood the requirements of 457.223(4)(a) and thereby fell into jurisdictional error.

   21. The AAT erred in its application of clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations).

   (a) In finding that the primary visa applicant satisfied clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) the AAT failed to consider whether he satisfied all requirements of that sub-clause.

   (b)The AAT was satisfied that the primary visa applicant satisfied clause 457.223(4J(a)(ii)(A), because he was named in an approved nomination made by an approved business sponsor.

   (c) The AAT failed to consider whether the primary visa applicant met the additional requirement under clause457.223(4)(a)(ii)(B), that the nomination approval had not ceased as provided for in regulation 2.75. Having not considered this requirement, it was not open to the AAT to conclude as it did that the applicant satisfied clause 457.223(4)(a).”

2. The question before the Tribunal was whether or not the applicant fulfilled clause 475.223(4)(a) of the Migration Regulations 1994. The Tribunal’s decision concluded that he did not, as he did not have an approved sponsor. In substance, the only outcome open to the Tribunal at this point was to refuse the application. It does not appear to me that it can be argued that the Tribunal did not understand the clause, or erred in the application of the clause, as these two grounds suggest.

Grounds 4, 6, 10 and 11

1. The third grouping of grounds allege that the Tribunal found that it had no jurisdiction. This is set out in grounds 4, 6, 10 and 11 which provide as follows

   4. Tribunal was merely focused on the application for review which was not received by the Tribunal and decided that the application for review was not made in accordance with the relevant legislation and the Tribunal had no jurisdiction in this matter.

   6. The matter was affected by the findings in Kandel v Minister for Immigration and Another [2015] FCCA 2013. In particular, the First Applicant was named in a nomination application that was still pending before the Department when he lodged his Tribunal application. He accordingly satisfied s.338(2)(d)(i), of the Act contrary to the findings of the Tribunal.

   10. The disadvantage to the applicant inuring to him on account of the decision not to proceed or not to have jurisdiction is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing extenuating and compelling circumstances which would remedy further issues and doubts.

   11. The Tribunal failed to exercise its jurisdiction while in some way affirming the decision of the delegate even after accepting that the Tribunal formed the preliminary view that it did not have jurisdiction because the decision of the delegate was not a 'AAT/MRT-reviewable decision' within the meaning of section 337 because, at the time of the application for review, the applicant was not sponsored by an approved sponsor.

2. These grounds bear no relationship to the actual decision made by the Tribunal. This is not a case that involves a Tribunal deciding it had no jurisdiction to determine the matter, nor a case where it concluded that the decision of the delegate was not reviewable. These grounds are misconceived and go nowhere. 

Grounds 7, 10, 14, 16, 17 and 18

1. The next group of grounds relates to claims about procedural fairness, in grounds 7, 10, 14, 16, 17 and 18, which provides as follows

   7. The Tribunal Member had the benefit of viewing all submissions uploaded and lodged together with the application for review but decided to dispose of the application for review without fully considering it under natural justice and on the its merits.

   10. The disadvantage to the applicant inuring to him on account of the decision not to proceed or not to have jurisdiction is that the applicant was thereby deprived of the opportunity of a further period of time in which to make right with his existing extenuating and compelling circumstances which would remedy further issues and doubts.

   14. The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving any weight on my oral explanations and the documents provided for consideration in this regard. If the Tribunal has verified the matter individually and given me further opportunities to explain that could have led to a different decision by the Tribunal.

   16. The Tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was apprehension of bias in the making of the purported decision as the sponsorship was not approved.

   17. and/or failed to comply with section 357 A(3);

   18. and/or failed to comply with section 359A(1) of the Act (as informed by section 357A(3), or in a manner consistent with section 357A(iii).

2. These grounds also appear to relate to a case other than the case before the Tribunal. The Tribunal clearly had regard to the material and wrote to the applicant and asked him to address the key issue in the case. He did not do so, and indeed, it is apparent from the material that he would not have been able to fulfil that criteria. In accordance with the Act, the Tribunal was not required to invite him to a hearing, given that he failed to respond to the request for information: see Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at 27.

Grounds 8, 15, 16, 17 and 18

1. The next group of grounds relates to claims concerning bias, at grounds 8, 15, 16, 17 and 18. 

   8. The Tribunal Member with a predetermined mind and a preconceived outcome of having the application for review disposed without weighing and considering the factual circumstances presented. This has caused great unjust to me under Natural justice and as such is a jurisdictional error on the part of the Tribunal member.

   15. The Tribunal biased by the overall information and considered my case on average without giving any weight on my claims and didn't look the matter individually.

   16. The Tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was apprehension of bias in the making of the purported decision as the sponsorship was not approved.

   17. and/or failed to comply with section 357 (3);

   18. and/or failed to comply with section 359A(1) of the Act (as informed by section 357A(3), or in a manner consistent with section 357A(iii).

2. I have included 17 and 18 in this heading, on the basis that they may be seen to impart, be associated with ground 16. There is nothing that has been put in evidence, or appears from the Court, to indicate that there was any basis for concluding that the Tribunal Member was acting in a way that showed bias. There was no basis upon which one could argue that there would be a reasonable apprehension of bias by a fair-minded observer, or indeed even the applicant. In these circumstances, there is nothing that makes these grounds arguable. 

Ground 12

1. I turn then to the next ground which is ground 12, which it is said that the Tribunal had exercised its decision-making power unreasonably and unconscionably. I can see no basis for this ground, as it was apparent that the Tribunal effectively had no choice in its decision as there was no approved business sponsor. There can be nothing unreasonable or unconscionable about the Tribunal complying with the law.

Ground 19

1. The final ground is ground 19 which appears to seek some redress with respect to the delegate, claiming that the delegate had failed to exercise the delegate’s decision‑making power reasonably.

2. This is misconceived for a two reasons. Firstly, the delegate’s decision is not able to be challenged in this Court. Secondly, the delegate’s decision has been reviewed on the merits by the Tribunal and therefore is no longer a relevant matter for the purpose of these proceedings. In these circumstances, this is simply not arguable.

Conclusion

1. The result is that when I consider each of the grounds from 1 to 21, individually and as a whole, I can see no basis from which the applicant has an arguable case. Furthermore the grounds, unfortunately, give this case an appearance of complexity that is completely unwarranted.

2. It is, in substance, a very straightforward case. The applicant did not have an approved sponsor and therefore was not eligible for the visa.  The applicant had significant time within which to obtain an approved sponsor, and indeed had three attempts to do so. The Tribunal decision was not made until after the sponsorship applications had been refused.  There has been no further challenge to the sponsorship decisions lodged with the Court.  In the circumstances, the applicant’s case ought to be dismissed, and I so order.

   [Further argument ensued].

3. I will dismiss the application of the first and third applicants under rule 44 of the Federal Circuit Court Rules 2001 (‘the Rules’) and I will dismiss the application of the second applicant under rule 13.03C(1)(c) as she failed to appear. I note that I made the order earlier for the litigation guardian and I need to make an order for the Minister’s name to be changed.

Costs

1. In this matter the applicants have been unsuccessful. It is appropriate that there be costs in favour of the First Respondent. I therefore order that the applicants pay the First Respondent’s costs fixed in the sum of $1,495.00.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 27 April 2020