Sidhu v Minister for Home Affairs
[2019] FCA 656
•14 May 2019
FEDERAL COURT OF AUSTRALIA
Sidhu v Minister for Home Affairs [2019] FCA 656
Appeal from: Application for leave to appeal: Sidhu & Ors v Minister for Immigration and Anor [2018] FCCA 1255 File number: VID 450 of 2018 Judge: BROMBERG J Date of judgment: 14 May 2019 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal interlocutory judgment of the Federal Circuit Court – where applicants failed to demonstrate that the primary judge’s reasons are attended with sufficient doubt to warrant the grant of leave to appeal – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a), 44.12(2)
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Cases cited: Ashby v Slipper (2016) 241 FCR 55
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Date of hearing: 15 April 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicants: The Applicants appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms S Roberts of Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 450 of 2018 BETWEEN: BALJEET KAUR SIDHU
First Applicant
GURPAL SINGH SINDHU
Second Applicant
MASTER DEEPINDER SINGH SIDHU
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
14 MAY 2019
THE COURT ORDERS THAT:
1.The applicants’ application for leave to appeal is dismissed.
2.The applicants pay the first respondent’s costs of that application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an application for leave to appeal the judgment of the Federal Circuit Court of Australia delivered on 16 April 2018 and published as Sidhu & Ors v Minister for Immigration and Anor [2018] FCCA 1255. The primary judge dismissed an application which sought the judicial review of a decision of the second respondent (“Tribunal”) made on 21 April 2017, affirming a decision of the delegate of the first respondent (“Minister”) to refuse to grant the applicants’ Employer Nomination (Permanent) (Class EN) visas (“visas”).
As the primary judge recorded at [2] of her reasons, orders were made by consent listing the applicants’ application for judicial review for a show cause hearing. Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) provides that at a show cause hearing, the Federal Circuit Court may “if it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application”. Given that the primary judge dismissed the applicants’ application pursuant to r 44.12(1)(a) and because r 44.12(2) of the Federal Circuit Court Rules specifies that such a dismissal is interlocutory in nature, the applicants require leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
For the applicants to succeed in having leave granted, they need to show that there is sufficient doubt as to the correctness of the judgment of the primary judge and that, if the judgment below is assumed to be wrong, substantial injustice will be suffered by the applicants if leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398‑399; see also Ashby v Slipper (2016) 241 FCR 55 at [41].
To assess whether there is sufficient doubt as to the primary judge’s conclusions, I need to turn to the issues dealt with by the primary judge. The primary judge annexed to her reasons each of the numerous grounds of judicial review relied upon by the applicants. That annexure is annexed to these reasons as Annexure A. At [17]-[25] the primary judge gave her reasons to why each of the grounds relied upon by the applicants did not raise an arguable case for the relief claimed. At [19]-[25] the primary said this (emphasis in original):
[19] Grounds 1 and 16 are not proper grounds of judicial review.
[20]Ground 2, as submitted by the First Respondent, cannot succeed. Nor can grounds 3, 10 and 13, on the same basis. Contrary to the Applicant’s assertion, the Tribunal had regard to the claim that the delegate’s decision was not made in a timely fashion, but found that that claim, even if accepted, did not demonstrate that at the time of its decision the Applicant was the subject of an approved nomination for the purposes of cl.186.223 of the Regulations. This finding was clearly open to the Tribunal on the evidence before it.
[21]Grounds 4, 6 and 14 cannot succeed. The Tribunal found, as it was required to, that the Applicant’s evidence as to her skills and work experience as a cook was irrelevant to the issue on review.
[22]Grounds 5 and 7 misunderstand cl.186.223 of the Regulations which requires the Applicant to be the subject of an approved nomination. In the absence of any evidence of an approved nomination, the Tribunal had no option but to find that the Applicant did not meet the requirements of the provision.
[23]Grounds 8 and 9 cannot succeed. The Court has no jurisdiction to review the decision of the delegate. To the extent the Applicant asserts the Tribunal’s refusal to adjourn the proceedings was unreasonable, it must fail. The Tribunal refused to delay its decision on the basis there was no evidence that Raaz Pty Ltd had an approved nomination, or had lodged a review of the decision to refuse the nomination application for the Subclass 186 visa, and the 21 day period within which Raaz Pty Ltd could have lodged such an application had long since expired. As submitted by the First Respondent, the Tribunal provided an “evident and intelligible justification” for its decision not to adjourn the proceedings under s.363(1)(b) of the Act and there is nothing in the material to indicate there would have been any utility in granting the adjournment application.
[24]Grounds 12 and 15 cannot succeed. The Tribunal complied with its procedural fairness requirements under Division 5 of Part 5 of the Act.
[25] Ground 11 seeks impermissible merits review.
The applicants filed a draft Notice of Appeal from the decision of the primary judge together with an affidavit which essentially repeated some of the grounds in the draft Notice of Appeal. The proposed grounds of appeal are as follows (errors in original):
1.The grounds of judicial review raised in the Migration Application filed by the Applicants were not suitable for a summary show cause hearing.
2.A final hearing was required to determine whether the First Respondent had engaged in inordinate and inexcusable delay in assessing the Applicant's visa application. This matters of law and factual issues giving rise to the delay argument could not be adequately determined in a summary show cause hearing.
3.A determination was required of the reasons as to the nominating employer closing their business and this was not suitable for a summary show cause hearing. Further evidence as to the closing down including company documents were required to be tendered.
4.The summary show cause hearing was not suitable to determine the visa application outcome where through no fault of the Applicants, the nominating employer had closed down and whether therefore a Bridging Visa C should have been granted and the application treated as invalid so as to allow the Applicants another opportunity to locate a new nominating sponsoring employer and to make fresh valid applications.
5.The decision of the AAT and/or the Federal Circuit Court of Australia is affected by jurisdictional error.
6.The AAT and/or the Federal Circuit Court of Australia took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.
7.The AAT and/or the Federal Circuit Court of Australia did not conduct the hearing in a fair and just manner and/or according to law.
8.The AAT and/or the Federal Circuit Court of Australia hearing and decision is unreasonable in all the circumstances of the case.
9.The AAT and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by me.
10.The AAT and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by me.
The applicants appeared unrepresented but with the assistance of an interpreter. So far as they made submissions on the appeal, the applicants, understandably, raised what they perceived to have been the unfairness of the process in which the applicants’ visa applications were dismissed. Those submissions did not assist the applicants on this application. They made no submissions addressing the matter I need to deal with, namely and firstly, whether the primary judge’s reasons are attended with sufficient doubt to warrant the grant of leave to appeal.
As to that issue, the applicants must fail.
The first four proposed grounds in the draft Notice of Appeal do not address the correctness of the judgment from which leave to appeal is being sought. They address the appropriateness of the decision made by the primary judge to conduct a show cause hearing rather than a final hearing. That decision is not the subject of the proposed appeal. As I have already recorded, the order made to hold a show cause hearing was an order made with the consent of the applicants. Further still, for the reasons set out in the Minister’s submissions, there is no basis for a conclusion that it was erroneous for the Federal Circuit Court to proceed by way of a show cause hearing.
Appeal grounds 5 to 10 do not expressly contend that error attends the primary judge’s determination that the judicial review application failed to raise an arguable case. Even if some of those grounds were to be read broadly and were regarded as indicative of such a challenge, no particulars are given sufficient to allow me to assess the basis for any suggestion that the correctness of the primary judge’s determination is attended with any doubt. Furthermore, there is no apparent basis that I can see that would support a conclusion that there is sufficient doubt attending the primary judge’s rejection of each of the grounds as raising an arguable case of jurisdictional error on the part of the Tribunal.
For those reasons, this application must be dismissed. It follows that the Minister’s costs of the application should be paid by the applicants.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 14 May 2019
ANNEXURE A
1.The Tribunal’s decision of 21 April 2017 is incorrect and has jurisdictional errors on the grounds below. I seek relief against this decision.
2.Despite my submission. The Tribunal did not consider or give enough weight to the fact that the delay by the Department of Immigration and Border Protection adversely affected the outcome of my visa application. In this regard I submit that I lodged my visa application on 31 October 2014. The Department of Immigration visited my workplace to assess and interview me on 19 February 2015. The department was satisfied with everything, yet it did not decide my application within a reasonable time after that. It was about 8 months later that the department refused my application as my employer had by then closed its business. The closure of the business was not anticipated or expected when my visa application was lodged or when the department visited my workplace and commented that the business was busy. This business had been operating since about 2007. The closure of employer's business was beyond my control. If the department had not delayed deciding my case, my visa would have been granted.
3.The decision of the Tribunal is affected by Jurisdictional error in that the Tribunal failed to take into account that refusal of my application by department was partly because of delay by the department in deciding my application.
4.Despite my submission, the Tribunal did not consider r give enough weight to the fact that I had necessary skills for my nominated occupation of “cook”. I had provided to the Tribunal, my skills assessment, tax documents and a statutory declaration from my employer in addition to the previously submitted documents about my employment including the employment contract.
5.At the time of my application, I did satisfy the criteria for the visa that I applied for in that I was sponsored by my employer for the nominated occupation of a “cook”, I was a subclass 457 visa holder who had worked for my employer for the past 2 years, and that the employer had offered me a permanent position in the same occupation.
6.The decision of the Tribunal is affected by jurisdictional error as it failed to take into account my total period of employment with the employer who had sponsored me for my visa. I had commenced worked with the same employer in 2009 (part time) moving to full time position in about August 2012. I worked there for a total of 6 years, with 3 years out of that being full time until unfortunately the business closed down in about July 2015. This business had been operating since about 2007.
7.My employer was banned from 6 July 2015 (over 8 months after my visa application was lodged) from making future applications for approval as a standard business operator. However. when my application was lodged, this ban was not in place and my employer was eligible to sponsor me.
8.The department or the tribunal did not give me time or chance to find another sponsored employment. This is against the natural justice as I had worked in the same business for about 6 years. I subsequently did find another employment in June 2016 with an Aged Care as a Food Service Assistant. I am still in that job.
9.The decision of the Tribunal is affected by jurisdictional error in that it did not give me time to lodge new sponsorship of my new employment after my employment ended with Raaz Pty Ltd. The Tribunal did not give any weight to the fact that there was no wrongdoing on my part in losing my employment with Raaz Pty Ltd due to unfortunate and unexpected closure of it business where I was employed for about 6 years before its closure.
10.The decision of the Tribunal is affected by Jurisdictional error in that the Tribunal failed to take into account that the department of immigration did not give me time or chance to find another sponsored employment. This denied me natural justice and was also against the procedural fairness.
11.My family and I have close ties with Australia and are contributing to its economy. We have been living here since 2008. Our child was born here in 2009 and now goes to school here.
12.The decision of the Tribunal is affected by Jurisdictional error in that the decision of Tribunal is against the interests of natural justice. Refusal of my visa application is unfair and denial of natural justice.
13.I should not be penalised for something that is not my fault. I was working diligently as per my job requirements. The closure of business was beyond my control. If the department had not delayed in determining my visa application, I would have received my visa long before the business unfortunately and unexpectedly closed down.
14.The decision of the Tribunal is affected by Jurisdictional error as it failed to consider or properly consider my exceptional, compelling and compassionate circumstances.
15.The decision of the Tribunal is affected by Jurisdictional errors as the procedural fairness was not followed by the Tribunal in arriving at its decision.
16.For the above reasons I believe that it is necessary in the interests of the administration of justice to grant me visa.
(errors in original).
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