Sadyal v Minister for Home Affairs

Case [2019] FCA 1462

FEDERAL COURT OF AUSTRALIA

Sadyal v Minister for Home Affairs [2019] FCA 1462

Appeal from: Sadyal & Ors v Minister for Home Affairs & Anor [2019] FCCA 843
File number: ACD 32 of 2019
Judge: CHARLESWORTH J
Date of judgment: 16 August 2019
Legislation:

Migration Act 1958 (Cth) ss 31, 65, 140GB

Migration Regulations 1994 (Cth) reg 2.72, cl 457.223
Cases cited:

Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842

Sadyal & Ors v Minister for Home Affairs & Anor [2019] FCCA 843

Song v Minister for Home Affairs [2019] FCA 970

Date of hearing: 16 August 2019
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 26
Counsel for the Appellants: The first Appellant appeared on behalf of the appellants
Counsel for the First Respondent: Ms L Crick
Solicitor for the First Respondent: Clayton Utz Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

ACD 32 of 2019
BETWEEN:

DINESH SADYAL

First Appellant

SHABNAM JARIYAL

Second Appellant

ANNIKA SADYAL

Third Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

16 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs fixed in the sum of $3,953.95.

3.The appellants have liberty to apply to vary the amount specified in the order in paragraph 2 such liberty to be exercised no later than 30 August 2019.

4.Any application made in accordance with the order in paragraph 3 may be made by email to Associate.CharlesworthJ@fedcourt.gov.au.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

CHARLESWORTH J:

  1. The first appellant, Mr Dinesh Sadyal is a citizen of India.  The second and third appellants are Mr Sadyal’s wife and child.

  2. The appellants appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 5 April 2019:  Sadyal & Ors v Minister for Home Affairs & Anor [2019] FCCA 843. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Home Affairs to refuse to grant Mr Sadyal a Temporary Work (Skilled) (subclass 457) visa under the Migration Act 1958 (Cth).

    THE ACT AND REGULATIONS

  3. Section 31 of the Act provides that there are to be prescribed classes of visa. The Migration Regulations 1994 (Cth) may prescribe the criteria for a visa of a particular class. If the Minister is satisfied that a visa applicant fulfils the criteria for the grant of the visa, the Minister must grant the visa: s 65(1)(a) of the Act. If the Minister is not so satisfied the Minister must refuse to grant the visa: s 65(1)(b) of the Act.

  4. The essential criteria for the visa for which…

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Sadyal v Minister for Home Affairs [2019] FCA 1462
Case
[2019] FCA 1462
Decision Date

CaseChat Overview and Summary

In Sadyal v Minister for Home Affairs, the applicants, Mr Sadyal and his employer, Canberra Fresh Group Pty Ltd, sought judicial review of decisions made by the Administrative Appeals Tribunal (AAT) which had upheld the Minister for Home Affairs’ refusal of a visa application and the refusal of an employer nomination. The applicants argued that the AAT had erred in affirming the delegate’s decision that the employer nomination was not valid as the position nominated did not meet the prescribed criteria under the Migration Regulations. Specifically, they contended that the Tribunal failed to consider the relevant evidence of the scale of the business, misinterpreted the role of a customer service manager, and improperly considered irrelevant factors.

The legal issues before the court included whether the AAT had properly applied the relevant statutory and regulatory criteria in assessing the validity of the employer nomination, and whether the AAT had considered irrelevant matters or failed to consider relevant evidence in making its decision. The applicants also argued that the Tribunal had misinterpreted the law by not applying the correct approach under the Migration Regulations.

The court found that the AAT had correctly applied the statutory and regulatory criteria and had not erred in its consideration of the evidence or the law. The court held that the AAT was entitled to conclude that the nominated position did not meet the criteria under the Migration Regulations, and that the evidence of the scale of the business was not sufficient to establish the genuine need for a customer service manager. The court also found that the AAT had not taken into account any irrelevant considerations and had properly applied the law to the facts before it. The appeal was dismissed, and the applicants were ordered to pay the costs of the first respondent. The applicants were granted liberty to apply to vary the amount of the costs order.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellants are to pay the first respondent’s costs fixed in the sum of $3,953.95.

3. The appellants have liberty to apply to vary the amount specified in the order in paragraph 2 such liberty to be exercised no later than 30 August 2019.

4. Any application made in accordance with the order in paragraph 3 may be made by email to Associate.CharlesworthJ@fedcourt.gov.au.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Regulation 2.72 is titled “Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa”. It sets out the prescribed criteria for the purposes of s 140GB which includes:(10) If the person is a standard business sponsor—the Minister is satisfied that:…(f) the position associated with the nominated occupation is genuine; …TWO DECISIONS UNDER THE ACT Mr Sadyal’s proposed employer is Canberra Fresh Group Pty Ltd as trustee for Canberra Fresh Group Trust. Canberra Fresh was approved as a standard business sponsor by Notice of Decision dated 6 October 2015. On 18 December 2015 Canberra Fresh applied for approval of its nomination of Mr Sadyal (the nomination application). For the purposes of reg 2.72(10)(f), the nominated occupation was that of a Customer Service Manager. On 22 July 2016 a delegate of the Minister refused the application of Canberra Fresh on the basis that the criterion prescribed in reg 2.72(10)(f) had not been met. As a consequence of that decision, the appellants’ visa application was refused because Mr Sadyal was not the subject of an approved nomination as required by cl 457.223(4)(a)(i). Canberra Fresh and the appellant each made applications to the Tribunal to review the respective decisions of the delegate. On 17 April 2018, the Tribunal affirmed the delegate’s decision to refuse the nomination application (nomination refusal decision). The Tribunal informed the appellants of that decision and invited them to comment or respond. The appellants did not respond and on 8 May 2018 the Tribunal affirmed the decision not to grant Mr Sadyal a visa on the basis that he was not the subject of an approved nomination of an occupation by a standard business sponsor that had not ceased (visa refusal decision). Canberra Fresh made an application for judicial review of the nomination refusal decision in the FCCA. The FCCA dismissed that application on 5 April 2019: Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842. The appellants applied for judicial review of the visa refusal decision. The FCCA dismissed that application by orders also made on 5 April 2019. That is the decision of which this appeal relates. This Court does not have before it an appeal from the judgment in Canberra Fresh Group. From this Court’s records it appears that no appeal was commenced by Canberra Fresh in respect of that judgment.TWO PROCEEDINGS IN THE FCCA The appellants relied on the following grounds for judicial review in the FCCA:1.The Tribunal acted unreasonably in affirming the refusal of nomination lodged by the sponsor/employer of the First applicant and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa.Particularsi.In paragraph 12 of the decision, the Tribunal had evidence before it that the businesses served 5,000 (five thousand) customers each week and that the nominated position operated over the top of the all customers and over the top of staff.ii.In paragraph 21, the Tribunal accepted that the business operate from two stores and so have a large volume of sales but still found that it was not of a scale to require a customer service manager.iii.The tribunal in paragraph 19 of its decision accepted that the description of tasks included in the ANZSCO matched the position of a customer service manager.iv.The applicant’s description of the nominee’s role, as stated in paragraph 12 of the Tribunal’s decision, and the tasks outlined to be undertaken by the nominee were reasonably aligned with the ANZSCO requirements for the role.v.In Paragraph 245, the Tribunal erroneously interlocked the roles of store manager and the customer service manager.2.The Tribunal took irrelevant considerations into account in affirming the decision of the delegate of the First respondent not to approve the nomination and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa.Particularsi.Paragraph 21, ‘it indicates to the Tribunal that consistent with the objectives of a retail outlet, all floor staff who serve customers would have the responsibility for ensuring customer service.’ii.Paragraph 25, ‘The Tribunal notes that the store manager is involved in the overall management of the business.3.The Tribunal misinterpreted the law or misapplied the law to the facts in the nomination decision and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa.Particularsi.r2.72(10)(f) and the approach taken in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30.

Ratio Decidendi

Legal Principle Established

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