Sharma v Minister for Home Affairs

[2020] FCCA 598

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 598

Catchwords:
MIGRATION – Application for judicial review – Regional employer nomination visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), cl.187.233, reg.5.14

Cases cited:

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

Applicant: KAMINI SHARMA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1939 of 2018

Judgment of: Judge Riethmuller

Hearing date: 3 March 2020

Date of Last Submission: 3 March 2020

Delivered at: Melbourne

Delivered on: 3 March 2020

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,737.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1939 of 2018

KAMINI SHARMA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 June 2018.  The applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa under the Migration Act 1958 (Cth). The visa application was made on 10 May 2017.

2. One of the criteria for obtaining the visa was that the applicant have a sponsor for the position that she was going to work in and further, that that sponsor be approved. This is provided for in cl.187.233 of the Migration Regulations 1994 (Cth) which must be read with reg.5.19.

3. The effect of these provisions is that the visa can only be granted if the employer provides the nomination (which relates to the position) that the applicant wishes to undertake on the work visa, and that is approved by the Minister. A lengthy discussion of how the complex provisions function is set out at paragraphs [81] to [90] of the Full Court of the Federal Court’s decision in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 by Jagot, Bromberg and Mortimer JJ.

The Applicant’s Claims

1. The applicant in this case was taking up a position with her nominating employer, Australian Skill Programs Pty Ltd. She said that the employer requested that she move to Melbourne on 10 May 2017 when her visa application was submitted, because the employer ran the business ‘Seymour Indian Cuisine’ in regional Victoria. The applicant told the Tribunal member that the nomination application had been refused, and that she found this out online through logging into her account.

2. The applicant has also had most unfortunate life events concerning her separation from her husband and a failed pregnancy. 

3. The nomination application was refused by the Department on 23 August 2017 and does not appear to have been reviewed.  The result is that the applicant is not eligible for this visa, as the nomination was refused by the Department. The applicant cannot obtain this visa in these circumstances.

4. The applicant in the proceedings before me firstly seeks an adjournment of the application. In that regard, she relies upon a report from a psychologist who saw her a couple of times and provided a long report to the Court which is set out in Exhibit ‘A’. That report sets out the emotional problems that the applicant has suffered and a diagnosis of depression on the part of the applicant, together with anxiety.  Importantly, the report does not suggest that she is incapable of managing her proceedings, nor that she is in need of a litigation guardian.

5. At court today, with the assistance of an interpreter, the applicant was able to engage in conversation about the issues in the case and articulate her concerns and, in particular, her concerns about how she was treated by the nominating employer. The report expresses concern about her ability to give evidence, if she is required to give evidence, because of the potential impacts of anxiety and depression. In proceedings of this type the applicant is not required to give evidence, because the proceedings are limited to legal argument on the question of judicial review of the Tribunal decision.

6. It seems clear from the report that one of the significant factors affecting the applicant’s health is her concern about these court proceedings: which leads to concern that, no matter how long the proceedings were adjourned for, the concern about the proceedings would continue to affect her health. This leads to the next difficulty with the report, that is, that it suggests that the prognosis for the applicant is more positive given that she accepted receiving treatment for a period of the next six months.  However, no time frame for when the psychologist believes she would be well is given, that is, in the context of being well enough to give consistent evidence as opposed to making arguments with respect to judicially reviewable error by the Tribunal.

7. The matter has been pending for some time.  The application was lodged in July 2018. It has had a Directions Hearing and been listed today more than 18 months after the application was lodged. At the Directions Hearing last year, directions were made for the filing of written material, which gave the applicant the opportunity to articulate her thoughts in writing if she wished to do so.

Grounds of judicial review

1. The application itself sets out seven grounds as follows:

   1. As per section 43 there are jurisdiction errors.

   2. Not adopting a fair process in making the decision

   3. Reaching a decision that is unreasonable in the legal sense

   4. Identifying a wrong issue

   5. Making a decision for which there was no evidence open on the materials.

   6. Ignoring the materials the decision maker should not have looked at.

   7. I am not legally satisfied with the decision. [sic]

Adjournment Application

1. I turn then to firstly consider whether an adjournment is appropriate. In this case, I am not persuaded that an adjournment is appropriate as the applicant was able to attend at court and engaged in an intelligent manner with respect to the issues. This is not a case where she is going to have to give evidence in the witness box. This is not a case where she is unable to manage her legal affairs. There is no evidence about any time by which she would be likely to be well enough to give evidence if required in the proceedings. Further, the proceedings appear to have at heart only one simple point, which is whether she has no sponsor, leading to the proposition that she is unable to obtain a visa. There is nothing in what she has said or done to indicate that there is anything further that she can do to address this point. 

2. I therefore refuse to grant an adjournment in the application. I turn then to the grounds of the application. 

Ground One

1. The first ground simply argues that there are jurisdictional errors. None are specifically articulated. 

Ground Two

1. The second ground is a claim that there was not a fair process. In this case, the Tribunal had a telephone hearing with the applicant. The applicant is critical of the length and nature of the hearing, although one must see that in the light of the fact that the core issue in this case is a very simple one, namely, whether or not she had an approved sponsor and that the Department records show that she did not and she does not suggest otherwise. The applicant clearly had an opportunity to put material before the Tribunal and an opportunity to speak to the Member.  I am not persuaded that the process was procedurally unfair.

Ground Three

1. The applicant says that the decision reached was unreasonable in the legal sense. It seems to me that the decision was required to be the way that it was, because the applicant did not have a sponsor and for the Tribunal to have decided otherwise would have been contrary to law by the Tribunal. The decision is not only legally reasonable but, on any fair reading of the material, is a reasonable and likely outcome.

Ground Four

1. The applicant says at ground 4 that the Tribunal identified the wrong issue. This makes no sense as the Tribunal identified the key issue and made findings with respect to it. 

Ground Five

1. The fifth ground alleges that the Tribunal made a decision for which there was no evidence upon the materials, however, the evidence before the Tribunal (which is not disputed by the applicant) is she did not have a sponsor. 

Ground Six

1. The sixth ground alleges that there was “material the decision-maker should not have looked at”. It is difficult to understand this ground other than as arguing the proposition that it alleges the decision-maker took into account irrelevant circumstances in the limited decision that was required here. The decision-maker did take into account whether or not there was a nomination and found that there was not. To the extent that there were extenuating circumstances concerning the applicant’s position and whether or not she may have been misled by the nominating employer, these things did not alter the requirement that she have a sponsor. 

2. The fact that the Tribunal noted that the applicant had set this matter out, does not seem to me to show that they took into account irrelevant matters but confirms that they did have regard to the whole of her circumstances at the hearing and clearly gave her an opportunity to articulate matters she wished to raise even though those matters were not capable of resolving the difficulty she faced.

Ground Seven

1. Finally, the applicant says she is not legally satisfied with these decision.  I take that to be a claim that the decision is not, as a matter of law, a sufficient articulation of reasons to be a legal exercise of power by the Tribunal. I reject that argument as the Tribunal clearly understood the nature of the case and articulated their reasons and their reasons seem to be inevitable on the law.

2. In the circumstances, I therefore find that the applicant has articulated no arguable case on the material, either in writing or on the submissions that she has put to me. 

3. As I explained to the applicant at the hearing, it may be that she a case to bring proceedings for damages for negligence or workplace rights against the nominating employer or agent, however, those proceedings are different from judicial review proceedings of the Tribunal. 

4. With respect to these judicial review proceedings, the applicant does not have an arguable case and the application ought to be dismissed. I therefore dismiss the application.

   [Further argument ensued]

Costs

1. In this matter the applicant has been entirely unsuccessful. The case was completely without merit. It is appropriate that there be costs in favour of the First Respondent. The matter seems to fall within the scale fee. I therefore order that the applicant pay the First Respondent’s costs fixed at $3,737.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  17 March 2020