Sawan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 93
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sawan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 93
File number(s): SYG 1364 of 2021 Judgment of: JUDGE LAING Date of judgment: 13 February 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision not to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas – where proposed employer did not have an approved nomination – whether the Tribunal did not consider relevant information – whether any contended errors by the Tribunal occurred or were material – futility – application dismissed. Legislation: Migration Act 1958 (Cth) s 486
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223
Cases cited: Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458
Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593
KC v the Minister of Immigration, Citizenship and Multicultural Affairs [2023] FCA 4
Mamun v Minister for Immigration & Anor [2011] FMCA 620
Subramaniam v Minister for Immigration & Multicultural Affairs [2001] FCA 891
SZNTA v Minister for Immigration & Anor [2009] FMCA 1226
Division: Division 2 General Federal Law Number of paragraphs: 21 Date of hearing: 13 February 2023 Place: Sydney Solicitor for the First Applicant: The First Applicant appeared in-person Solicitor for the Second Applicant: No appearance Solicitor for the First Respondent: Ms A Wilford, Sparke Helmore appeared in-person Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 1364 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAWAN
First Applicant
POOJA
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
13 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The application be dismissed.
3.The applicants pay the first respondent’s costs in the amount of $6,500.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicants Temporary Business Entry (Class UC) (Subclass 457) visas (457 visas).
BACKGROUND
The first applicant in these proceedings (Applicant) is a national of India. On 21 December 2017, he applied for the 457 visas that are the subject of these proceedings on the basis of a nomination made by Subisa & Dristi Pty Ltd (Employer). The second applicant, his wife, applied as a member of the family unit.
By letter dated 10 July 2018, the Applicant was invited to comment on information that the Employer did not have an approved nomination for the Applicant at the date of the letter. This, it was noted, would mean that his visa application was unable to be approved.
The Delegate refused the 457 visa application on 22 August 2018. The Delegate observed that the Employer did not have an approved nomination in place for the Applicant. Although they had lodged a GK 482 Short Term nomination, this could not be used to finalise a 457 visa application. Accordingly, the Delegate found that the criterion in cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) could not be met.
On 10 September 2018, the applicants applied for review of the Delegate’s decision by the Tribunal. The Applicant attended a hearing before the Tribunal on 11 May 2021.
By letter dated 7 June 2021, the applicants were invited to comment on the following information:
•It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under s.140GB of the Act.
•On 10 July 2018, the nomination made by [the Employer] in relation to you was refused by the Department. [The Employer] applied for review of the nomination refusal, however, on 3 June 2021, the Tribunal affirmed the application for review of the nomination.
•The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.
On 23 June 2021, the Tribunal affirmed the Delegate’s decision.
ReLEVANT CRITERION
The criterion at issue before the Tribunal was cl 457.223(4)(a) of Schedule 2 to the Regulations, which provided:
457.223
…
Standard business sponsorship
…
(4) The applicant meets the requirements of this subclause if:
(a) each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75…
TRIBUNAL’S DECISION
The Tribunal reasoned as follows:
8.The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a).
Requirement for an approved nomination
9.Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
10. In this case, the applicants applied for the visa on the basis of a nomination of an occupation made by the nominating business. The nomination was refused on 10 July 2018, and the nominating business applied to the Tribunal for review of that decision. On 3 June 2020, the Tribunal affirmed the Department's decision to refuse the nomination.
11. Further, as stated above, the Tribunal wrote to the applicants pursuant to s.359(A) on 7 June 2021 in which the applicant was put on notice that they may not satisfy the requirements in cl. 457.223(4)(a).
12.The evidence before the Tribunal is that the nomination in relation to the primary visa applicant in support of the Subclass 457 visa has been refused. That decision has been reviewed by the Tribunal and the delegate's decision affirmed, meaning that the decision refusing the nomination stands. As the primary visa applicant is not the subject of an approved nomination that can support their application for a Subclass 457 visa it follows that the primary visa applicant does not satisfy the requirement in cl.457.223(4)(a).
13. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the primary visa applicant would be able to satisfy the specific criteria for those streams.
14. The remaining applicant relies on their status as a member of the family unit of the primary visa applicant. As the primary visa applicant does not satisfied primary criteria for the grant of a Subclass 457 visa, the remaining applicant does not satisfy cl.457.321.
On this basis, the Tribunal affirmed the Delegate’s decision (at [15]).
Proceedings before this court
The applicants commenced the proceedings before this Court through an application filed on 16 July 2021. The following was stated under the heading “Grounds of application” (reproduced verbatim):
The tribunal refused my 457 Visa application without considering the documents and the information I have provided.
The ground as pleaded was unparticularised. However, I accept that the Tribunal did not expressly refer in its decision to all documents and information that had been provided by the applicants in support of their application. Such documents included evidence of the Applicant’s qualifications and employment history. Those documents were referred to by the Applicant during his hearing before the Court.
It is well accepted that the Tribunal is not required to refer to every item of evidence before it. Non-reference to a particular item does not necessarily mean that it was not considered: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].
In the circumstances of this case, the more likely inference to be drawn is that the Tribunal did not consider that evidence to be material to its decision. This was in circumstances where the only issue before the Tribunal was the Applicant’s ability to meet cl 457.223(4)(a). That was an objective criterion for the grant of the visas, which required that the Applicant have an approved nomination. As was put to the applicants in the invitation to comment dated 7 June 2021, the Applicant was unable to meet this criterion in circumstances where refusal of the nomination he had relied upon had been affirmed. The applicants were therefore unable to meet the criteria for the grant of the visas.
In these circumstances, even if the Tribunal had overlooked some part of the evidence that was before it such as the Applicant’s qualifications or employment history, it is not apparent how this could be said to have resulted in material error in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
At the hearing of this matter before the Court, the Applicant expressed that he felt it was unfair that the nomination in relation to him had been refused, when others had been approved. However, that is not the decision under review in this case. The review of the nomination decision, and the documents provided in support of it, were the subject of a separate decision by the Tribunal. That decision is not before the Court. The Applicant has no standing to challenge that decision: see s 486C(2)(a) of the Migration Act 1958 (Cth) (Act) and Mamun v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 95 at [40]. It was the outcome of that decision, and not the materials leading to that decision, that determined whether or not the Applicant was able to meet cl 457.223(4)(a).
In written submissions, the Minister additionally submitted that remittal to the Tribunal would in any event be futile. There has been support for this proposition in a number of previous decisions of this Court, including Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458 at [32] to [33] and Subramaniam v Minister for Home Affairs [2021] FCCA 355 at [21]. Such cases have found that, absent an approved nomination, upon remittal the Tribunal would have no option than to affirm a 457 visa refusal considering changes that have been made to the legislative regime in the intervening period. However, recently in KC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 4, Rares J rejected a similar argument at [51]-[54]. The Minister’s primary position during the hearing today was therefore that it was unnecessary for the Court to decide this issue as no jurisdictional error has been demonstrated in the Tribunal’s decision.
As I accept the Minister’s primary position, it is unnecessary to determine the question of futility.
conclusion
For these reasons, the application before this Court must be dismissed.
If successful, the Minister sought costs fixed in the amount of $6,500. I accept that this amount is reasonable, being an amount that is substantially below the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the parties.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judge Laing. Associate:
Dated: 13 February 2023
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