Rangi v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 635

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rangi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 635

File number(s):

SYG 587 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

9 August 2022 

Catchwords:

MIGRATION – Administrative Appeals Tribunal – whether the applicant denied procedural fairness – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 359A

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

Division:

Division 2 General Federal Law

Number of paragraphs:

25

Date of last submission/s:

4 August 2022

Date of hearing:

4 August 2022

Place:

Parramatta

Counsel for the Applicants:

The Applicants appeared in person.

Solicitor for the Respondents:

Mr Gao of HWL Ebsworth appeared on behalf of the First Respondent

ORDERS

SYG 587 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

JAGROOP SINGH RANGI

First Applicant

SUKHWANT KAUR

Second Applicant

KOMALPREET KAUR (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	9 AUGUST 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The First Applicant to pay the First Respondent’s costs fixed in the sum of $5,600.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicants are citizens of India. The applicants stated they migrated to Australia in 2013 with the hope to provide a wealthy future for their family and to the children.

2. On 8 April 2017, the first applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer visa”) in the Temporary Residence Transition scheme. The Second, Third and Fourth respondents were included in the Regional Employer visa as members of a family unit.

3. On 19 April 2018 a delegate of the Minister for Immigration (“a delegate”) refused to grant the first applicant the Regional Employer visa as the delegate was not satisfied that the first applicant met clauses 187.223, 187.233 and 187.242 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The second, third and fourth applicants were refused their visas on the basis that they did not meet cl 187.311 of Schedule 2 to the Regulations.

4. On 24 April 2018, the Applicants applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. The Tribunal affirmed the decision of the delegate not to grant the applicants their Regional Employer visa on 11 march 2021.

5. The Applicants now seek judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

6. The Tribunal’s decision record is relatively short containing 23 paragraphs across 3 pages. The first 8 paragraphs of the Tribunal decision record provide the background of the applicants’ visa application.

7. At paragraph 9 of the decision record, the Tribunal acknowledges that the issue in the matter concerned whether the first applicant satisfied cl 187.223(2) of Schedule 2 to the Regulations. Paragraphs 10 and 11 of the Tribunal decision record state the requirements of cl 187.223 of Schedule 2 to the Regulations. The first applicant’s position to which the visa application related to must have been the subject of an approved nomination.

8. At paragraph 12 of the decision record, the Tribunal notes that the delegate refused the employer nomination and that the nominator lodged an application for review with the Tribunal. On 14 December 2020, the Tribunal affirmed the decision under review to refuse the employer’s nomination.

9. At paragraph 13 of the decision record, the Tribunal states that on 16 February 2021, the Tribunal sent an invitation to the applicants to comment or respond to information that the employer nomination review had been affirmed by the Tribunal under s 359A of the Migration Act 1958 (Cth) (“the Act”). The invitation letter explained the requirements of cl 187.223 of Schedule 2 to the Regulations that there need to be an approved nomination. The applicants had until 2 March 2021 to provide a response or request an extension of time.

10. At paragraph 14 of the decision record, the Tribunal acknowledges that they received a statutory declaration from the first respondent. The statutory declaration stated that the first applicant came to Australia in 2013 to work for the nominator and brought his family with him. The first applicant’s children have adapted to life in Australia and the second respondent had invested a good deal of money into a greenhouse used by the nominator and paid for a lease. An adverse decision would impact the first applicant’s future, the children’s’ careers, the second applicant’s investment and the nominator who had a medical condition at the time.

11. At paragraph 15 of the decision record, the Tribunal notes that the refusal of an employer nomination can have significant impacts on visa applicants linked to that application, however all applicants would have been aware that they were on temporary visas and should be cautious of making investments in Australia until their visas are finalised. The Tribunal acknowledges that an adverse finding would impact the applicants, however further stated that it is bound to apply the law.

12. At paragraphs 16 and 17 of the decision record, the Tribunal states that there was no approved employer nomination to satisfy cl 187.223(2), and therefore the provision under the Regulations were not met. At paragraph 18 of the decision record, the Tribunal found that cl 187.223 of Schedule 2 to the Regulations.

13. At paragraph 19 of the decision record, the Tribunal notes that the first applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition stream. As the requirements for the grant of a visa under the Temporary Residence Transition stream had not been met, the decision under review had to be affirmed.

14. At paragraphs 20 and 21 of the decision record, the Tribunal notes that the second, third and fourth applicants were secondary applicants to the first applicant’s Regional Employer visa and thus sought to satisfy cl 187.311 of Schedule 2 to the Regulations. An excerpt of cl 187.311 to Schedule 2 to the Regulations was included in the decision record, which demonstrated that the provision would be satisfied where the secondary applicants are members of a family unit of a person who holds a Subclass 187 visa. As the first applicant’s Subclass 187 visa was refused, the Tribunal found that the secondary applicants did not meet cl 187.311 and affirmed the decision not to grant their visas.

    GROUNDS OF JUDICIAL REVIEW

15. The applicant’s proposed grounds of judicial review are contained within an Initiating Application filed with the Court on 1 April 2021. Under the heading for ‘Grounds of application’, the application refers to an attachment.

16. In an attachment to the Initiating Application titled ‘Ground of application’, the applicants provide what would appear to be submissions, without any grounds of judicial review. The information that is provided as the grounds of application can be summarised as follows:

    •The applicants came to Australia in 2014 on a Temporary Business Subclass 457 visa, sponsored by IS & RK Grewal.

    •The first applicant began working as a mixed crop farmer with IS & RK Grewal.

    •In late 2013, IS & KH Grewal expanded their production and 6 greenhouses were built. The first applicant worked with multiple crops.

    •In 2015, IS & KH Grewal changed their production again. The first applicant was responsible for takin care of this change and invested three years in doing so.

    •The first applicant performed numerous duties from purchasing seeds to packaging products.

    •The first applicant was the only caretaker of the greenhouses and production of blueberries, as the employer had a medical condition. When taking on these responsibilities, the first applicant gained excessive experience.

    •The first applicant applied for a Regional Sponsored Migration Scheme-visa Subclass 187. In 2020, the Tribunal affirmed the decision not to grant the employer’s nomination application by IS & RK Grewal.

    •The decision to refuse the employer nomination had a bad impact of the applicants. The third and fourth respondents, who are children, have adapted to life in Australia and wish to start their careers in Australia. The second applicant runs a business involving greenhouses and has invested a lot of money, including the payment of a lease.

    •The Tribunal’s decision has also had a negative impact on the employer as the employer is dependent on the first applicant.

    •The first applicant has been loyal to the employer. The applicants have developed an emotional attachment to the farm. The first applicant is looking forward to the next steps of the farming business after the employer invested a sum of money into it.

    THE APPLICANT’S SUBMISSIONS

17. None of the applicants were legally represented.  No Interpreter was requested in the Court.

18. Prior to the hearing commencing, the Court ensured that the applicants were in possession of a copy of the relevant Court Books and that they was in possession of a copy of the first respondent’s written submissions.  The Court also ensured that the applicants had access to a pen and paper so that they could take notes during the course of the hearing should they so wish to.

19. At the commencement of the hearing, the Court explained was undertaking judicial review not merits review and the difference between the two types of review.  The Court also explained how the hearing would be undertaken.

20. Despite Court orders, no written submissions or other material was filed by the applicants in support of their case.  The Court explained there was a fatal flaw in the application as there was no employer sponsor for an employer sponsored visa. The applicants stated they were aware of this issue and had nothing further to say to the Court.

    CONSIDERATION

21. In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom of the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

22. The difficulty with this case is that none of the matters contained in the Grounds of application in the Initiating Application, which are repeated in an undated Affidavit of the first applicant filed in Court on 12 April 2021, constitute proper grounds of judicial review.  They merely outline the factual background to the matter and express disagreement or dissatisfaction with the Tribunal’s findings.  In the circumstances of this case, none of the grounds identify any jurisdictional error.  If anything, they invite the Court to undertake impermissible merits review: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]- [54]).

23. The Court also accepts the submission of the first respondent that the application itself appears to be futile.  The visa application must be considered against a specific employer nomination and a specific approval of that nomination by the Minister: (see; Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [88] – [90]). As the Tribunal has already affirmed the decision to refuse the nomination by the nominating employer, the applicants are unable to link any new nomination to the refused visa application. Thus remitting the matter to the Tribunal would be futile as any other tribunal would be required to affirm the delegate’s decision not to grant these sponsor employer.

24. None of the matters raised by the applicants have any merit.  As the applicants are unrepresented, the Court has carefully perused the Tribunal decision record but is unable to ascertain any unarticulated error.

    CONCLUSION

25. The application of the first applicant must be refused.  As the remainder of the applicants are part of the family unit, their applications must also be refused as they are dependent upon the first applicants matter being successful. Accordingly, the application is dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       9 August 2022

SCHEDULE OF PARTIES

SYG587/2021
Applicants
Fourth Applicant:	JASMEET SINGH