Sharma v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 612
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sharma v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 612
File number(s): SYG 831 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 22 August 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 359, 360, 361
Migration Regulations 1994 (Cth) Schedule 2, cl 187.23, reg 187.233(3)
Cases cited: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443
Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 1 August 2022 Date of hearing: 1 August 2022 Place: Parramatta Counsel for the Applicant: The Applicant appeared in person. Solicitor for the First Respondents: Mr McCaughan appeared on behalf of the First Respondent. ORDERS
SYG 831 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASHISH SHARMA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
22 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 Applicant to pay the First Respondent’s costs fixed in the sum 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
The applicant is a male citizen of India. The applicant first arrived in Australia as the holder of a Temporary Graduate (subclass 485) visa.
On 28 February 2018, the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer visa”) under the Subclass 187 visa Regional Sponsored Migration Scheme. A delegate for the Minister for Immigration (“the delegate”) refused to grant the applicant his Regional Employer visa on 31 October 2019 as the applicant did not meet cl 187.23 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because the nomination application by Shivram Australia Pty Ltd (the nominator) was refused on 30 September 2019.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 6 April 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant a Regional Employer visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal’s decision record is relatively short, consisting of 28 paragraphs over 4 pages. After setting out the procedural background, the Tribunal noted that on 16 February 2021 the applicant was invited to attend a hearing under s 360 of the Migration Act 1958 (Cth) (“the Act”). On 18 February 2021, the Tribunal sent a letter to the applicant, pursuant to s 359A of the Act, inviting him to comment on or respond to information that showed that the nominator had withdrawn their nomination review application on 14 October 2020.
At paragraph 11 of the decision record, the Tribunal provides the content of the s 359A the Act letter which included that the information was necessary to satisfy reg 187.233(3) of the Regulations for the grant of the Regional Employer visa.
At paragraph 12 of the decision record, the Tribunal reproduces further information contained within the s 359A the Act letter, such as when the applicant’s comments or response should be received, seeking an extension of time to comply, and the consequences of failing to provide comments or a response.
At paragraph 13 of the decision record, the Tribunal noted that the applicant provided a submissions with the following documents attached:
•Job Ready statement of prior employment
•Reference from Brasa Bar & Grill
•Correspondence from Department of Home Affairs re: application for Bridging Visa and lodgement of subclass 187 visa application dated 28 February 2018 and granting of visa grant notice dated 28 June 2017 (Subclass 486).
•Employment Contract 27 February 2018
•Various bank statements July 2017 to December 2017, July 2018 to December 2018, January 2019 to June 2019 and May 2020 to July 2020.
•Numerous screen shots of text messages
•Legal correspondence dated 23 July 2020 and response undated
•Motor claim Allianz insurance
•Department of Home Affairs Invitation to comment dated 30 September 2019 and Decision record dated 31 October 2019
•Photographs
•Email dated 3 March 2021
•Correspondence to Fair Work Ombudsman re: complaint dated 6 November 2020
•Receipt Western NSW Local Health District 12 June 2020
•Medical Certificate dated 10 July 2020
•Certificates of attainment/attendance
•PTE Academic Report
•Copy of Passport insert
At paragraph 14 of the decision record, the Tribunal states that whilst all of the applicant’s documents were considered, only those that were material to the decision had been expressly referred to.
Paragraphs 15 and 16 of the decision record provides details of the Tribunal hearing. The applicant appeared at the Tribunal hearing via telephone. The Tribunal noted that the hearing was conducted during the COVID-19 pandemic and that due to the applicant’s circumstances and the objectives of Tribunal, it was necessary to conduct the hearing via telephone.
At paragraph 21 of the decision record, the Tribunal states that at the Tribunal hearing the applicant was told that he must be the subject of an approved nomination to satisfy cl 187.233 of the Regulations to be granted a Regional Employer visa. At paragraph 22 of the decision record, the Tribunal restates the applicant’s claims at the hearing that he was the victim of visa fraud and various fair work contraventions.
At paragraph 24 of the decision record, the Tribunal noted that the applicant had nominated two witnesses, however he did not seek their approval or availability to appear at the Tribunal hearing. When asked about the relevance of the witnesses’ evidence, the applicant said that he had made a complaint about the nominator. The Tribunal accepted the applicant’s evidence in relation to his complaint to the Fair Work Ombudsman and the Department for Home Affairs and found that it was not necessary to contact the two witnesses. The applicant agreed with this decision.
At paragraph 25 of the decision record, the Tribunal found that the nomination application associated with the applicant’s position was not approved and that he did not meet cl 187.233(3) of Schedule 2 of the Regulations. At paragraph 27 of the decision record, the Tribunal noted that the applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry Stream and that no claims had been made in respect of other visa streams. As the requirements of the Direct Entry Stream were not met, the Tribunal affirmed the decision under review.
GROUNDS OF JUDICIAL REVIEW
The ground of judicial review are contained within an Initiating Application filed on 11 May 2021. The grounds are as follows verbatim:
1. The decision of the Tribunal is a deprivation of natural justice and fairness as I told the Tribunal exactly what happened to me at the hand of my sponsor. The Tribunal failed to investigate the fraud caused by the nominator and that I was a victim at the hand of the nominator.
2. The Tribunal failed to subpoena or contact the nominator who cheated me and stole my money as well as harassed me and deprived me of my entitlements.
3. The Tribunal failed to accept and act upon the nominator’s withdrawal of nomination.
4. The Tribunal failed to consider my complaint with the Fair Work Ombudsman as well as the Department and contrary to the finding of the Tribunal it was necessary to contact the said witnesses and such did not happen.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter. The Court was satisfied the applicant has sufficient English language skills to effectively participate in the hearing and present his case.
Prior to the hearing commencing, the Court ensured that the applicant had been provided with a copy of the relevant Court Books and that a copy of the first respondent’s written submissions had been served upon him. The Court also ensured that 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
At the commencement of the hearing, the Court explained 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.
Despite Court orders, no written submissions or other material, including hearing transcripts, was filed on behalf of the applicant in support of his case. The applicant told the Court that he complained to the Tribunal about the actions of his nominator sponsor, Shivram Australia Pty Ltd. Further, the Tribunal refused to contact two persons, one from the Fair Work Ombudsman and another from the Department of Home Affairs who might be able to provide material about the actions of the nominator. The applicant submitted that he was the victim of fraud at the hands of the nominator.
CONSIDERATION
This is an unfortunate case where, if the applicant’s claims are accepted, the applicant has been the victim of dubious, possibly fraudulent behaviour of the nominator. This type of behaviour has been claimed in other matters and is perhaps indicative of a significant problem with these types of visas.
The issue with the case is notwithstanding the claims of the applicant, even if true, they do not solve the problem that he faces, being he cannot be granted the type of visa he seeks without having an approved nomination by an employer. That is he cannot meet clause 187.233 of Schedule 2 of the Regulations. In these circumstances, the Tribunal had no option open to it other than to affirm the decision of the delegate to refuse the application for the visa sought.
Further, even if the grounds of judicial review have merit, it would be futile to remit the matter back to the Tribunal for further consideration, as the Tribunal would be obliged in the particular circumstances of this case to again affirm the decision to refuse the applicant his visa.
In terms of the actual grounds of judicial review relied upon, grounds one and two assert that the Tribunal failed to make inquiries as to the allegations of fraud and misconduct raised by the applicant. As noted by the respondent, the Tribunal does not have a general duty to inquire. The Court’s role is to determine whether the decision is infected by jurisdictional error by reference to the complaints made by the applicant. Jurisdictional error will only occur if the Tribunal fails to make an obvious inquiry about a critical fact the existence of which is easily ascertained: (see; Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [1] and [25]).
Further, the fraud described by the applicant was on the part of the nominator, not on the Tribunal. Thus the Tribunal was not disabled from carrying out its task by the fraud, so as to establish jurisdictional error: (see; Minister for Immigration and Citizenship v SZLIX (2008) 100 ALD 443 at [32]-[33]). No duty to inquire therefore arose.
In terms of the claims of a denial of natural justice, no error on the part of the Tribunal is apparent. The Tribunal complied with the various procedural requirements set out in
Division 5 Part 5 of the Act. This included asking the applicant to comment pursuant to
s 357A of the Act on various issues that were determinative of the review. The applicant was properly invited to attend a hearing pursuant to s 360 of the Act and had the opportunity of giving evidence and presenting arguments.
One error is conceded by the first respondent. The decision of the delegate referred to subclause 187.223 of Schedule 2 to the Regulations. It should have referred to cl 187.233 of the Regulations. This was noted by the Tribunal at paragraph 5 of its decision record. It was referred to in the s 359A of the Act letter and discussed with the applicant during the course of the hearing. Any error on the part of the delegate was then corrected by the Tribunal and cured the defect by the delegate: (see; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at [92]). Grounds one and two have no merit.
Ground three is misconceived. It all alleges that the Tribunal failed to accept and act upon the nominator’s withdrawal of nomination. The withdrawal was expressly referred to in paragraph [10] of the decision record. The Court agrees with the first respondent’s submission that there is a strong inference that the withdrawal was the basis for the ultimate decision at [25] when the Tribunal stated “having considered the evidence before it”. This necessarily included the withdrawal. Ground three has no merit.
Ground four is a complaint that the Tribunal failed to consider the complaint to the Fair Work Ombudsman and it was necessary for the Tribunal to contact the witnesses nominated by the applicant. It was for the applicant to provide such evidence to support his application for review. While the applicant notified the Tribunal of a wish to call evidence pursuant to
s 361(3) of the Act, while the Tribunal must have regard to the request the Tribunal is not required to obtain the evidence from the persons nominated. Further, given the issues under consideration by the Tribunal, the Court is of the view that any evidence that may have been provided by the proposed witnesses would not have assisted the applicant and would not have been dispositive if the issues under review. The fact that the applicant had lodged a complaint about the nominator was a fact that the Tribunal considered and accepted at paragraph [24]. The applicant is then recorded as indicating that he concurred that the Tribunal was not required to contact the witnesses. Accordingly no error arises and the ground has no merit.
CONCLUSION
The Court has considerable sympathy for the applicant. On his evidence he has been taken advantage of by an unscrupulous nominator. Such stories are raised not infrequently raised in applications for these type of visas. Such allegations should be investigated where there is sufficient evidence to warrant such an investigation.
The role of the Court however is confined to review based whether there is jurisdictional error within the Tribunal decision. There is not. The Court has no option but to dismiss the application.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 22 August 2022
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