PRABHAKAR v Minister for Immigration

[2016] FCCA 1544

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRABHAKAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1544

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Migration Review Tribunal – whether applicant has raised an arguable case for the relief she seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), s. 140GB, 359(2), 359(3), 359C(1), 379A, 379A(5),

379G(1), 379G(2)

Migration Regulations 1994 (Cth), r. 2.75
Migration Regulations 1994 (Cth), cl. 457.223(2), 457.223(4), 457.223(4)(a), 457.223(4)(a)(i), 457.223(4)(a)(ii), 457.223(4)(d), 457.223(4)(d)(ii)

Applicant: NEHA PRABHAKAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3610 of 2014

Judgment of: Judge Manousaridis

Hearing date: 19 May 2016

Delivered at: Sydney

Delivered on: 24 June 2016

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents:	Ms A Wong of
Mills Oakley Lawyers

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Administrative Appeals Tribunal be substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3610 of 2014

NEHA PRABHAKAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) moves for an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for judicial review be dismissed because it does not raise an arguable case for the relief it seeks. The application in question seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Temporary Business Entry (Class UC) subclass 457 visa (457 visa). 

2. At the conclusion of the hearing of the application, the applicant, who is not legally represented, applied for an adjournment to obtain legal advice. I did not grant the adjournment. Instead, I indicated I would reserve my judgment and deliver it on 24 June 2016, and I granted the applicant leave to apply by no later than 17 June 2016 to reopen her case, provided such application were certified by a lawyer that he or she believes the applicant has reasonable grounds for the relief the applicant wishes to seek. The applicant did not exercise that liberty to apply.

Background

1. The applicant, a citizen of India, applied for a 457 visa on 16 October 2013. To have been entitled to a 457 visa, the applicant had to satisfy, at the time of decision, a number of criteria. These included either the criteria specified in cl.457.223(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), or the criteria specified in cl.457.223(4) of Schedule 2 to the Regulations. The applicant elected to satisfy the criteria specified in cl.457.223(4).

2. Under cl.457.223(4)(a)(i) and (ii) of Schedule 2 to the Regulations, the applicant had to satisfy the Minister that a nomination of an occupation in relation to the applicant had been approved under s.140GB of the Migration Act 1958 (Cth)(Act), and that that nomination was made by a “standard business sponsor” at the time the nomination was approved. A nomination application was submitted by the applicant’s standard business sponsor “Dhanshree Pty Ltd” (Dhanshree) nominating an occupation in relation to the applicant, that occupation being “Customer Service Manager”. That nomination application was approved on 12 September 2013[1], before the applicant lodged her 457 visa application on 16 October 2013.

   [1] CB33-36

3. The issue before the delegate was whether the applicant satisfied the criterion specified in cl.457.223(4)(d) of Schedule 2 to the Regulations which required that the Minister be satisfied that:

   i)the applicant’s intention to perform the occupation is genuine; and

   ii)the position associated with the nominated occupation is genuine”.

4. The delegate was not satisfied the nominated position of “Customer Service Manager” was necessary to the operations of the business and considered the position of “Retail Supervisor”, which did not appear on the Consolidated Skilled Occupations list, to be more appropriate considering the nature of the business.  In a decision dated 24 January 2014, the delegate refused to grant to the applicant a 457 visa because the delegate did not consider the position associated with the nominated occupation to be genuine and accordingly, the applicant did not meet cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations.

Tribunal’s decision

1. The Tribunal, in its decision, noted the issue before the delegate was whether the applicant met the criterion in cl.457.223(4)(d) of Schedule 2 to the Regulations but considered the issue before it was whether, at the time of the Tribunal’s decision, the applicant met the approved nomination requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations.

2. On 14 November 2014 the Tribunal sent by email to the applicant’s migration agent a letter in which it invited the applicant to provide information to “demonstrate that you are the subject of an approved business nomination made by a standard business sponsor which has not ceased as required by cl.457.223(4)(a)” or information to “demonstrate you will meet this requirement in the near future – for example by providing information to demonstrate that an approved business sponsor has lodged a nomination application relating to you and it is currently being processed by the Department of Immigration and Border Protection”. It is apparent that the Tribunal sent this letter pursuant to s.359(2) of the Act which provides that the Tribunal “may invite, either orally (including by telephone) or in writing, a person to give information”.

3. The Tribunal noted in its letter that, pursuant to r.2.75 of the Regulations, approval of a business nomination for a 457 visa ceases after 12 months, unless it has ceased for another reason before that time and that a new business nomination application by an approved business sponsor made to the Department of Immigration and Border Protection would be required if a nomination had not been approved in the previous 12 months. The Tribunal requested the applicant provide to it such information by 28 November 2014. The Tribunal further noted that if it did not receive the information within the period allowed (or as extended), the Tribunal may make a decision on the review without taking any further action to obtain the information.

4. The applicant did not provide the Tribunal with the information within the allowed period and no extension of time was sought. Assuming the Tribunal had provided to the applicant its letter dated 14 November 2014 by one of the methods specified in s.379A of the Act (a matter to which I will turn in a moment), the applicant’s failure to respond gave rise to the power conferred by s.359C(1) of the Act, which provides as follows:

   If a person:

   (a)     is invited in writing under section 359 to give information; and

   (b)     does not give the information before the time for giving it has passed;

   the Tribunal may make a decision on the review without taking any further action to obtain the information.

5. The Tribunal decided to exercise the power under s.359C(1) of the Act and proceeded to make a decision without taking further steps to obtain the information from the applicant.

6. The Tribunal was not satisfied there was any information or material before it to indicate there was, at the time of its decision, an approved nomination of an occupation relating to the applicant made by a standard business sponsor which has not ceased or, information which indicated the applicant would meet the requirement in the near future. For those reasons, the Tribunal was not satisfied the applicant met the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations and affirmed the decision not to grant to the applicant a 457 visa.

Ground of application

1. The application filed with this court contains one ground of review:

   “My 457 visa got refused twice after my nomination being approved. My visa agents (lawyer) did not notify me about my MRT-dates (I have a doubt on my employers too). The reason for refusing my 1^st 457 was the job not suitable for customer service manager. But some one else got 457 visa on the same business which I considered partiality. I was working for same people for last 4 years and the guy who got visa was new for the business”.

2. On a fair reading of this paragraph, it contains the following three grounds:

   a)The applicant has been refused a 457 visa even though a nomination of the occupation in relation to the applicant had been approved under s.140GB of the Act.

   b)The applicant’s agent did not inform her of the Tribunal’s letter dated 14 November 2014 until after the Tribunal had made its decision.

   c)Persons in similar circumstances as the applicant had been granted a 457 visa.

3. The first of the three grounds discloses no arguable case for relief. First, the requirement specified in cl.457.223(4)(a)(i) and (ii) of Schedule 2 to the Regulations that a nomination of an occupation in relation to the applicant has been approved is a distinct and separate requirement from that specified in cl.457.223(4)(d)(ii) of Schedule 2 to the Regulations. That is so even though the matters that may have had to be satisfied for the approval of a nomination in relation to the applicant under s.140GB of the Act are also matters that the applicant had to satisfy to be entitled to the grant of a 457 visa. Secondly, the Tribunal did not affirm the delegate’s decision for the reasons the delegate refused to grant a 457 visa to the applicant. The Tribunal affirmed the delegate’s decision because there was no material to indicate there was an approved nomination of an occupation relating to the applicant made by a standard business sponsor. At the time the applicant applied for the 457 visa, there was such approved nomination. The Tribunal noted in its letter dated 14 November 2014, however, that, under the regulations, the approval of a business nomination for a 457 visa ceases after 12 months. By the time the Tribunal made its decision, the twelve month-period had passed.

4. As to the second of the three grounds, whether or not it is relevant that the applicant was informed by her migration agent of the Tribunal’s letter before the Tribunal made its decision depends on what the Act provides in relation to the Tribunal communicating with an applicant. Of central importance is s.379G(1) and (2) of the Act:

   (1)     If:

   (a)     a person (the applicant) applies for review of an MRT‑reviewable decision; and

   (b)     the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

   the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

   (2)     If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.

5. The form of application to the Tribunal which the applicant completed had a section titled “Representative details”. The applicant completed this section by inserting the name of a migration agent and the postal and email addresses of the agent. In my opinion, by submitting the application with that information, the applicant provided to the Tribunal written notice of the name and addresses of the migration agent whom the applicant authorised to do things on her behalf in connection with the review. That means that, under s.379G(1) of the Act, the Tribunal was required to send to the applicant’s agent, as the authorised recipient, rather than the applicant, any document the Tribunal would otherwise have given to the applicant.

6. The Tribunal sent the letter dated 14 November 2014 to the email address of the applicant’s agent. It was the email address the applicant inserted in the application she lodged with the Tribunal. Subsection 359(3) of the Act provides that if a written invitation is given to a person other than the Secretary, that invitation must be given, except where an application is in immigration detention, by one of the methods specified in s.379A of the Act. One of the methods specified is that contained in s.379A(5) of the Act. That subsection permits the Tribunal to send the invitation by email, among other methods, to the last email address provided to the Tribunal by the recipient in connection with the review. Thus, by sending the letter dated 14 November 2014 to the email address of the applicant’s migration agent specified in the application, the Tribunal gave to the migration agent the letter by one of the methods permitted by s.379A of the Act. In those circumstances, because of s.379G(2) of the Act, the Tribunal is taken to have given the letter dated 14 November 2014 to the applicant.

7. It follows, therefore, that the applicant’ s not having been informed by her agent until after the Tribunal made its decision that her agent received the letter dated 14 November 2014 does not raise an arguable case for the relief the applicant seeks.

8. The third ground also raises no arguable case for the relief the applicant seeks. That a person in the same circumstances as the applicant was granted a 457 visa does not raise an arguable case that the Tribunal made a jurisdictional error in affirming the delegate’s decision. In any event, it is unlikely that a person who, like the applicant at the time the Tribunal made its decision, did not have in place an approved nomination, would have been granted a 457 visa.

Conclusion

1. I propose, therefore, to order that the application be dismissed, and that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 24 June 2016