Saini v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Saini v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 629  

File number(s): SYG 888 of 2021
Judgment of: JUDGE HUMPHREYS
Date of judgment: 8 August 2022 
Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer visa – whether the Tribunal ignored relevant information – whether the Tribunal incorrectly found that the second and third applicants were not members of a family unit.
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

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

Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA

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

Varsi v Minister for Home Affairs [2019] FCA 504
Division: Division 2 General Federal Law
Number of paragraphs: 34
Date of last submission/s: 4 August 2022
Date of hearing: 4 August 2022
Place: Parramatta
Counsel for the Applicants: The Applicant appeared in person.
Counsel for the Respondents: Mr McCaughan.

ORDERS

SYG 888 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RAHUL SAINI

First Applicant

ANGEL SAINI

Second Applicant

HAZEL SAINI

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:

8 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 is to pay the First Respondent’s costs, fixed in the amount of $5900.00.

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 first applicant’s initial Regional Employer Nomination (Permanent) (Class RN) (subclass 187) visa application (“Regional Employer visa”) included the second applicant and the first applicant’s former spouse who is not a part of this application. The third applicant was added to the Regional Employer visa application at a later point in time. The application to the Court now only relates to the First applicant, and his two daughters.

  2. The applicants applied for their Regional Employer visa on 15 December 2016. On 7 November 2018 a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Regional Employer visas.

  3. On 27 November 2018 the applicants sought merits review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). On 14 April 2021, the Tribunal affirmed the decision of the delegate not to grant the applicants their Regional Employer visa.

  4. The Applicants now seek judicial review of the Tribunal’s decision in this Court.

    PRELIMINARY MATTERS

  5. During the Course of the hearing, with the consent of the applicant, the Court made orders appointing him as litigation guardian for the purpose of these proceedings of the second and third applicants, being the first applicant’s children.

  6. At the commencement of the hearing, the first applicant sought an adjournment. This application had not been foreshadowed to either the Court or the First Respondent. The applicant stated that he had not been able to obtain legal representation. The applicant told the Court that he had been focussing on some criminal proceedings in the District Court that had now concluded in his favour. The Court noted that the proceedings commenced in this Court in April 2021. Orders for the preparation of the matter for hearing were made in June 2021. None of those orders, in relation to the applicant filing and serving submissions or other written material he might rely upon have been complied with. Further, the applicant has not approached any legal representative before today’s hearing. In all of the circumstances, the Court refused the adjournment application.

    THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

  7. It must first be acknowledged that the Tribunal decision record makes reference to the first applicant having sought to satisfy the Temporary Residence Transition stream and cl 187.223, when in fact the applicant applied through the Direct Entry stream and cl 187.233 was the relevant requirement for this stream.

  8. The Tribunal decision record contains 34 paragraphs across five pages. Paragraphs 1 to 10 of the Tribunal’s decision record provides the background of the applicants’ visa application and a summary of the decision.

  9. At paragraph 11 of the decision record, the Tribunal states that the matter concerned whether the first applicant had an approved sponsor. At paragraph 11 of the decision record, the Tribunal stated that the first applicant was asked whether he understood that there was a requirement for Subclass 187 visas that there be an approved nomination, to which he responded that he understood.

  10. At paragraph 13 of the decision record, the Tribunal notes that first applicant was asked whether he was still working with Rajmandeep Pty Ltd (“the nominator”), the applicant’s proposed nominator. The applicant responded that he was not working with the nominator. The applicant ceased working with the nominator on 22 August 2020.

  11. At paragraph 15 of the decision record, the Tribunal notes that it was put to the first applicant if he understood that he was no longer employed by the nominated sponsor. The first applicant responded that he experienced a domestic violence issue with his wife and did not attend the nominator’s address since the date that he ceased working there. At paragraph 16 of the decision record, the Tribunal states that the first applicant was asked whether the wife was related to the nominator, to which he replied that she was not.

  12. At paragraph 17 of the decision record, the Tribunal confirmed that the domestic violence issue was reported to the police and that due to a court order the first applicant was not able to attend the premises of the nominator. At paragraph 18 of the decision record, the Tribunal records that the first applicant stated that he and his wife separated on 23 August 2020.

  13. At paragraph 19 of the decision record, the Tribunal sought to understand whether the first applicant was aware that he did not have a sponsor. The first applicant responded that he had new employment and very good cooking skills. The first applicant confirmed that he did not have a sponsor at that time.

  14. At paragraph 20 of the decision record, the Tribunal notes that the first applicant stated that when he applied for his Regional Employer visa he was refused, but that he had a new job where the employer was willing to sponsor him. The Tribunal explained that this was not a matter for the Tribunal and that the information would need to be taken up with the Department for Immigration.

  15. On 21 February 2021, the Tribunal sent an invitation pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) inviting the applicants to comment on or respond to information that the nominator’s application for a nominated position was refused and that an application for review was withdrawn. The applicants had until 3 March 2021 to respond or seek an extension of time.

  16. The first applicant responded to the s 359A invitation that his employer was waiting and that they were happy to provide the nomination and position to the Tribunal. The first applicant further stated that he had an approved nomination by the nominator who was willing to provide the nomination, if the Tribunal was willing to give him the opportunity.

  17. At paragraphs 24 and 25 of the decision record, the Tribunal explains the requirements of


    cl 187.223 to schedule 2 of the Migration Regulations 1994 (“the Regulations”). The position to which a visa application of this type relates to must be the subject of an approved nomination.

  18. At paragraph 26 of the decision record, the Tribunal found that the first applicant was notified of the nominator’s refusal on 21 February 2021and was thus informed of the status of the nomination. At paragraph 27 of the decision record, the Tribunal considered the first applicant’s submissions and was not satisfied that the applicant had an approved nomination. The Tribunal took note of evidence given by the first applicant that he had not been employed at the company since 22 August 2020 and that the nominator had withdrawn their application for review of the delegate’s decision. At paragraphs 28 and 29 of the decision record, the Tribunal found that the first applicant did not satisfy cl 187.223 to Schedule 2 of the Regulations.

  19. At paragraph 30 of the decision record, the Tribunal notes that the first applicant had only sought to satisfy the requirements for the grant of a Subclass 187 visa in the Temporary Residence Transition stream. As the requirements for the Temporary Residence Transition stream had not been met, the decision under review had to be affirmed.

  20. At paragraph 31 and 32 of the decision record, the Tribunal explains that it had examined the case file to locate contact details for the second applicant, but was unable to. The former Migration Agent for the first applicant was contacted but was too unable to provide contact details for the second applicant. Given the circumstances, the Tribunal was satisfied that the second applicant has been correctly notified regarding the hearing before the Tribunal and that no change of contact details had been received by the Department for Immigration or the Tribunal.

  21. At paragraph 33 of the decision record, the Tribunal found that given the first applicant did not meet the requirements for the grant of a Regional Employer visa, the second and third applicant did not satisfy cl 187.311 of Schedule 2 to the Regulations and the decision under review had to be affirmed.

    GROUNDS OF JUDICIAL REVIEW

  22. The grounds of judicial review are contained within an Initiating Application filed with the Court on 19 May 2021. The grounds are reproduced as they appear in the Initiating Application, verbatim:

    1.   At paragraph 21, the tribunal wilfully ignored the new details of my new employer and prospective application that I can get sponsorship. The tribunal refused me saying “that is not a consideration before the Tribunal and that is a matter I would have to take up with the Department”.

    a.The Tribunal was required to request the details of sponsorship where I was able to apply another type of visa nomination (e.g. 407 or 482 or 494) using new employer.

    b.With the new approved nomination, I could seek Ministerial Intervention (MI) and due to current COVID situation and Hospitality workers are in huge shortage, my MI would have come positive and I would have applied sc482 visa onshore. Due to denial of immediate consideration of new information by the Tribunal, I lost a prospect of Ministerial Intervention.

    2.   At paragraph 33, the tribunal incorrectly judge that the secondary applicants are no member of the family unit. I separated from my spouse however my children are still my family members. Tribunal is required to find the facts in accordance with the law and the decision must have correct information and findings of the Tribunal. I provided the information about my separation from my wife and no information about the children were raised of discussed at Tribunal hearing. The tribunal failed to provide information, how my children are not my family members.

    APPLICANT’S SUBMISSIONS

  23. The applicant appeared before the Court unrepresented.  The applicant was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that a copy of the respondent’s written submissions had been interpreted to him.  The Court also ensured the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.

  24. At the commencement of the hearing, the Court explained to the applicant that it was undertaking judicial review not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

  25. Notwithstanding Court orders, no written submissions or other material was supplied by the applicant in support of his case.  The first applicant told the Court that as a result of criminal proceedings taken against him in relation to his ex-wife, he was restricted from entering the area of his employer’s workplace. It was for this reason that his employer withdrew the nomination. Now that the criminal proceedings have been finalised, with him being acquitted, the applicant stated his previous employer is prepared to renominate him for the visa he sought. The Court explained that it was restricted to looking at the matter at a point in time, being the time of the Tribunal decision and could not take account of subsequent developments.

  26. Following the completion of the First Respondent’s oral submissions, the applicant was asked if he wished to say anything in reply.  The applicant repeated the matters he raised in his oral submissions

    CONSIDERATION

  27. 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 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.

  28. Ground one contends that the Tribunal ignored new details of his new employer and a prospective application that would enable the applicant to get sponsorship. This ground is misconceived. While the Court has no doubt that the applicant has managed to obtain a new sponsor, the operation of cl 187.223 of Schedule 2 to the Regulations is such that the Tribunal is unable to consider any nomination other than the one to which the applicant made the visa application.  The visa application is for a “position” with a particular employer at a particular point of time that the nominated or employer lodged the nomination application.  It is a “once off” process.  Any further employer nomination sponsorship process requires a separate visa application: (see; Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [85]-[90]).

  29. The Tribunal correctly identified that the applicant was not the subject of an approved nomination as the employer nominator’s nomination application was refused by a delegate and then withdrawn when the matter came before the Tribunal.  Thus, the Tribunal could not do anything other than dismiss the applicant’s application which depended upon the approval of the nomination: (see; Varsi v Minister for Home Affairs [2019] FCA 504 at [21]). Ground one has no merit.

  30. Ground two is similarly misconceived. It is a misunderstanding of the Tribunal’s finding at paragraph 33.  This paragraph reads as follows:

    As the primary applicant does not meet the requirements of cl187.223, it follows that the secondary applicants are not members of a family unit that is met the requisite criteria. Accordingly, the secondary applicants did not satisfy cl187.311.

  31. The Tribunal was not making any finding that the secondary applicants were not part of the applicant’s family unit as he was separated from his spouse. Rather, the Tribunal simply found that, as the primary applicant did not meet the relevant criteria for the grant of a visa, accordingly, the secondary applicants (as part of a family unit) could not also meet the relevant criteria for the grant of a visa.  Ground two has no merit.

  32. The Court also notes the submission of the respondents that even if a jurisdictional error existed, (which is not admitted) it would be futile to return the matter to the Tribunal for reconsideration as the Tribunal would be required to come to the same conclusion as the first Tribunal.  The Court accepts the submission.

  33. The Court notes that there is an incorrect reference in the decision to the temporary residence transition scheme and clause 187.223. The Court is satisfied that these were typographical errors which were not demonstrative of the Tribunal failing to discharge its statutory task: (see; Overy v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA at [30]).  The essential question in this matter was at the time of the Tribunal decision, whether or not the applicant was the subject of an approved nomination by an employer, which he was not.

  34. As the applicant is unrepresented, the Court has perused the decision record of the Tribunal but is unable to find any unarticulated jurisdictional error.  The application must be dismissed in relation to the first applicant.  For the same reasons, as the first applicant has not been successful, and the visa application for his children depends upon his visa application being successful, the application is in respect of the first applicants two children, must also be dismissed.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       8 August 2022

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