Radeshar Pty Ltd v Minister For Immigration & Anor (No.2)
[2011] FMCA 561
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADESHAR PTY LTD v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2011] FMCA 561 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to grant the visa applicants Employer Nomination (Migrant) (Class AN) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.347, 359A Migration Regulations 1994 (Cth), regs.121.210, 121.211, cl.121.221 |
| Radeshar Pty Ltd v Minister for Immigration [2011] FMCA 560 Singh v Minister for Immigration and Citizenship [2010] FMCA 813 |
| Applicant: | RADESHAR PTY LTD Visa applicants: Ms Jubiley Devarajan |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2183 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman of Newman and Associates Solicitors |
| Counsel for the Respondents: | Mr T. Riley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 8 October 2010 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to this Application, as agreed or assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2183 of 2010
| RADESHAR PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 2 November 2010, the solicitors for the First Respondent were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit ‘A’.
At the commencement of the hearing, Mr Newman informed the Court that he had been briefed to appear in the matter number SYG 2184 of 2010 and that he had only received and reviewed the Court Book in respect of that matter. The proceedings (SYG 2183 of 2010) were brought by Radeshar Pty Ltd as trustee for Pillay Family Trust and concerns an Application for Review of a decision made by a Delegate of the Minister of Immigration and Citizenship to refuse to grant a visa to the Applicant’s Employer Nomination (Migrant) (Class AN) visas applied for on 13 July 2007. Radeshar Pty Ltd file a Form 785 seeking approval for the appointment of a Seamstress/Dressmaker (Australian Standard Classification of Occupation code 4941-5). The nominee is Ms Jubiley Devarajan from Kerala India with two dependent daughters.
The delegate decided to refuse to grant the visas on 9 February 2009 and notified the visa applicants of the decision and their review rights by letter dated 10 February 2009. The delegate refused the visa applications as the first named visa applicant, Ms Jubiley Devarajan as she did not satisfy cl.121.221 of Schedule 2 of the Migration Regulations 1994. The delegate found that the visa applicant did not satisfy cl.121.221 because the review applicant, Radeshar Pty Ltd as Trustee for the Pillay Family Trust application for an Approved Appointment under the Employer Nomination Scheme (ENS) had been refused by the Department on 19 February 2009. Radeshar Pty Ltd, the visa applicant’s sponsor, applied to the Tribunal on 16 April 2009 for review of the delegate’s decision. The Tribunal found that the delegate’s decision was a MRT reviewable decision and that the review applicant had a valid application for review under s.347 of the Migration Act 1958 (Cth) (‘the Act’).
Background
The material set out in Radeshar Pty Ltd v Minister for Immigration [2011] FMCA 560 at paras.[5] – [6]:
Radeshar Pty Ltd was established in Sydney in June 2004 by Raman Pillay and Shyla Pillay. Radeshar is an umbrella for hospitality businesses which are trading as:
· Windsor Terrace Motel
· Windsor Motel
· Killara Inn Conference and Function Centre
· Windsor Holiday House;
· Arvis’s Tandoori Restaurant & Bar;
· Mogul Indian Restaurant;
· Ascot Motor Inn; and
· Deepa Cuisine Indian Coffee House.
The organisation is associated with Golden Chain Motor Inns limited which are providers of quality accommodation and services and is Australia’s largest motel chain. As part of the development phase, the Directors of Radeshar identified a niche market of Bollywood theme parties for the mainstream Australian market and also developed Indian restaurants to have various Indian state themes in order to differentiate them and be positioned as authentic Indian restaurants.
Radeshar Pty Ltd had identified a niche market of Bollywood themed parties for the mainstream Australian market and intended to launch it for the Christmas season of 2007. In addition it wanted to have its current and upcoming Indian restaurants to have various Indian state themes in order to differentiate them and being positioned in the authentic Indian restaurants. Radeshar Pty Ltd expected to have a sizeable requirement for ethnic Indian dresses. Radeshar Pty Ltd intended to have an in-house seamstress who could cater to the ongoing needs of these dresses. The seamstress would stitch customised garments for different Indian states for the employees. Mr Pillay, the Director and principal of Radeshar Pty Ltd claims that lots of Indian garments rely on hand and machine embroidery which is very specialised so it was a requirement that the seamstress be proficient in embroidery as well.
An in-house seamstress could also provide repairing and mending needs for in-house linen requirements for the motels owned by Radeshar, thus reducing inventory costs and ensuring better services to customers. If there were to be sufficient time, Radeshar intends to produce custom-fit chef’s clothing and supply these to students when they enrol in the hospitality courses which were being promoted by Radeshar. Ms Jubiley Devarajan, along with two dependant daughters who were all citizens of India, were selected to fulfil this role.
Grounds of Application
In the Application filed in this Court on 8 October 2010, contained the following grounds:
i)The Tribunal has made a decision to suit itself, as affirming the decision of the Minister on the ground that the company had sanctions imposed in the past even though the sanction period had already elapsed.
ii)The applicant was denied an opportunity to present his argument at the Tribunal as the application was not given the opportunity for a hearing.
Tribunal decision
The Tribunal decision 0902890 by Tribunal Member T. Delofski dated 15 September 2010 sets out the relevant law applicable to the decision and summarises the evidence put as follows:
9. On 30 July 2010 the Tribunal wrote to the review applicant ( the visa applicants’ sponsor) inviting him to comment on certain information which the Tribunal considers would, subject to any comments it makes, be the reason, or part of the reason, for affirming the decisions under review. The particulars of the information were that the Departmental records indicate that on 6 February 2009 the Department refused the review applicant’s application for an approved appointment. The Tribunal advised that this information is relevant to the review because it may indicate that the primary visa applicant, Jubiley Devarajan, does not meet the requirements of cl.121.221 of the Regulations which is a necessary primary criterion for the Subclass 121 visa that the visa applicants have applied for.
10. In the letter the Tribunal also advised that if the Tribunal did not receive the review applicant’ comments within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information; and that the review applicant will also lose any entitlement it may otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. In the event, the Tribunal did not receive the review applicant’s comments within the prescribed period and the Tribunal has proceeded to make a decision on the material before it.
11. At the time the visa applications were lodged, Employer Nomination (Migrant) (Class AN) contained the following subclasses: Subclass 121 (Employer Nomination Scheme), and Subclass 119 (Regional Sponsored Migration Scheme). The Only subclass in respect of which any claims have been advanced is Subclass 121 (Employer Nomination Scheme). There is no evidence to suggest that the visa applicants meet key criteria for any of the other subclasses.
12. A primary requirement to be satisfied at the time of decision is cl121.221 which requires that the primary visa applicant’s sponsor (the review applicant) has an approved appointment. The review applicant’s application for an approved appointment was refused by the Department on 6 February 2009 and the Department’s refusal was subsequently affirmed on review by the Tribunal. Based on the evidence the Tribunal finds that the primary visa applicant does not meet cl.121.221.
13. A secondary requirement to be satisfied at the time of decision is cl.121.321. Since the primary visa applicant is not a person who has satisfied the primary criteria and is the holder of a Subclass 121 visa, the secondary visa applicants do not meet cl.121.321.
Mr Newman’s submissions
Mr Newman indicated that when he arrived at Court he found that there were also proceedings in SYG 2183 of 2010, brought by Radeshar Pty Ltd as trustee for Pillay Family Trust, with visa applicants Ms Jubiley Devarajan, Delma J Devaraj and Ms Lamcy J Devaraj. Mr Newman indicated that he did not have specific instructions in relation to this matter but acknowledged that unless the sponsor can succeed, then the proposed employees must fail. Mr Riley, appearing for the Minister, indicated that he did not object to Mr Newman making submissions in respect to the second application.
After submissions were made by both parties in respect to proceedings SYG 2184 of 2010, there remained the SYG 2183 of 2010 proceedings in which Mr Newman had indicated he did not have instructions. Mr Newman acknowledged that proceedings SYG 2183 of 2010 logically followed SYG 2184 of 2010 and accepted that the employees had really no chance of success if the sponsor was at fault, as there would be no position to which the nomination could apply and he indicated that he was unsure what application could be put on behalf of the nominee. To resolve this, I indicated to Mr Newman that I would proceed with matter SYG 2184 of 2010 and if his client succeeded when I handed down that decision, I would give Mr Newman the opportunity to proceed with SYG 2183 of 2010. Clearly, if SYG 2184 of 2010 fails then there is no point in hearing further submissions in respect of SYG 2183 of 2010. Mr Newman acknowledged that he accepted those arrangements.
Mr Riley’s submissions
Mr Riley indicated that his client wished to bring to the Court’s attention an issue that it believes is its obligation as a model litigant.
On 30 July 2010, the Tribunal forwarded a letter addressed to Mr Pillay under the provisions of s.359A which was an Invitation to Comment on Information which addressed the following issue:
In conducting its review, the Tribunal is required by the Migration Act to invite Radeshar Pty Ltd as Trustee for the Pillay Family Trust to comment on certain information which the Tribunal considers would, subject to any comments it makes, be the reason, or part of the reason, for affirming the decision under review.
Please not, however, that the Tribunal has not made up its mind about the information.
The particulars of the information are:
· Departmental records indicate that on 6 February 2009 the Department refused your application for an approved appointment.
This information is relevant to the review because it may indicate that the primary visa applicant, Jubiley Devarajan, does not meet the requirements of cl. 121.221 of the Regulation which is a necessary primary criteria for a sub-class 121 visa applicant have applied for. (CB 162)
Mr Riley indicated that there is a possible argument that the Tribunal should have written another letter once the decision made by the Tribunal in proceedings SYG 2184 of 2010 were made advising Radeshar Pty Ltd that the Tribunal had affirmed the Department’s decision. What happened is that the decision in SYG 2184 of 2010 was made on 14 September 2010 and the decision in SYG 2183 of 2010 was made on 15 September 2010 so the Tribunal took the approach that one followed the other, which is certainly true, but there is an argument and his Honour Nicholls FM dealt with this in the matter of Singh v Minister for Immigration and Citizenship [2010] FMCA 813 at [42] – [46]. In that decision his Honour held that he would refuse relief on discretionary grounds because the Tribunal would be bound to refuse the visa given the previous Tribunal decision affirming the delegate’s decision to refuse approval of the nominated position. At [50] of his Honour’s decision he states:
[50] Nothing that Mr Singh could say, in the circumstances, would alter that outcome. It would only be an exercise in futility in making the orders sought in these circumstances.
Consideration
In respect of an Approved Appointment under the Employer Nomination Scheme (ENS), the provisions of the Migration Regulations 1994, sub-clause 121 applies. The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. The Regulations work in two parts, there is initially the criteria to be satisfied at the time of application and secondly, the criteria to be satisfied at the time of the decision of the approving officer. As Reg.121.210 and Reg.121.211A do not apply, the appropriate regulation at the time of the application is Reg.121.211 which requires:
(a) the applicant has been nominated by an employer, in accordance with subregulation 5.19 (2), for an appointment in the business of that employer;
The criteria to be satisfied at the time of the decision is Reg.121.221 which states:
The appointment mentioned in paragraph 121.211 (a):
(a) has been approved; and
(b) has not been withdrawn; and
(c) continues to satisfy the criteria for approval; and
(d) is still available to the applicant.
The issue in this matter is in regard to the satisfactory compliance with immigration law and workplace relations law. Where an employer has previously been approved, which in the case of Radeshar Pty Ltd as trustee for the Pillay Family Trust, was first approved as a business sponsor for four positions on 3 April 2007. Three visas were subsequently granted. Although specifically stated, this Application for Ms Jubiley Devarajan appears to be the fourth application under the 3 April 2007 approval.
The compliance with immigration law will be assessed by reference to its monitoring history, which in the case of Radeshar Pty Ltd was subject by a routine monitoring process commenced by an unannounced site visit to Ascot Motor Inn on 29 February 2008. During that visit, a Form 1287 was provided to Radeshar Pty Ltd as sponsor, to complete and return to the Department. On 23 June 2008 a Breach Notice was issued to Radeshar Pty Ltd for failing to complete the Form 1287 and returning it to the Department. Full compliance with the sponsorship undertakings is necessary in order to satisfy the requirements that the employer has complied satisfactorily.
The requirement regarding continued satisfaction of the nomination criteria is designed to allow the delegate to refuse the visa application if there has been a change in the circumstances of the employer. Examples of changed circumstances which may result in the refusal on these grounds would include a breach of immigration law or if the relevant applicant was the subject of sponsorship sanctions. Delegates are permitted to assume that the nomination continues to meet the criteria for approval unless there is specific information that comes to light which would suggest otherwise.
The issue of the Breach Notice and subsequent Sanction Notice which were challenged by two applications to the Minister seeking intervention, were unsuccessful. No application was lodged with the Tribunal in relation to this issue. Consequently, it remains on the historical record that Radeshar Pty Ltd had breached the requirements of the ENS due to the failure to comply with the payment regime of three visa holders under the Approved Appointment. The discretion given to the original decision maker allows that person to take into account this historical breach independently of the existence of any current sanction. Significantly, the breach involved both immigration law and industrial law which are both identified as key issues for consideration in the assessment of new applications.
The Tribunal clearly considered these issues in its review and applied the appropriate regulations. No jurisdictional error is evident and the Application should be dismissed with costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 22 July 2011
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