Sidhu v Minister for Immigration

[2018] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDHU & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1255

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – employer nomination visa – Applicant not subject of an approved nomination – employer did not lodge application for review – where Applicant failed to raise an arguable case for relief – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12, div.11.2.

Migration Act 1958 (Cth), ss.359A, 363, 476.

Migration Regulations 1994 (Cth), reg.5.19, Schedule 2 cl.186.223.

First Applicant: BALJEET KAUR SIDHU

Second Applicant: GURPAL SINGH SIDHU

Third Applicant: DEEPINDER SINGH SIDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 954 of 2017

Judgment of: Judge Hartnett

Hearing date: 16 April 2018

Delivered at: Melbourne

Delivered on: 16 April 2018

REPRESENTATION

The First and Second Applicants: In Person

Solicitor appearing as Counsel for the First Respondent: Ms Nyabally

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $3667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 954 of 2017

BALJEET KAUR SIDHU

First Applicant

GURPAL SINGH SIDHU

Second Applicant

DEEPINDER SINGH SIDHU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. On 10 May 2017 the Applicants filed an application, pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’), seeking review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 April 2017. The Tribunal affirmed the decision of the delegate of the First Respondent dated 15 October 2015 to refuse to grant the Applicants Employer Nomination (Class EN) (subclass 186) visas (‘the visas’).

2. By consent, orders were made on 22 November 2017 listing the matter for a show cause hearing this day. On that date also, and pursuant to div.11.2 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’), the First Applicant was appointed as the litigation guardian of the Third Applicant.

3. The First Respondent argues that the application fails to raise an arguable case for the relief claimed and should be dismissed pursuant to r.44.12 of the Rules.

4. The Applicants have filed submissions on which they rely, filed on 9 April 2018 and the First Respondent has filed submissions on which the First Respondent relies, filed on 28 March 2018. 

Background

1. The First Applicant (‘the Applicant’) is a female citizen of India who, on 31 October 2014, applied for the grant of a (subclass 186) Employer Nomination scheme visa on the basis that she had been nominated for the position of cook by her sponsor, Raaz Pty Ltd. The Applicant’s husband and son were included as dependents in the visa application.

2. The Applicant was assessed against the criteria of a (subclass 186) Employer Nomination scheme visa in the Temporary Resident Transition (‘TRT’) stream.  At the time of the application a criterion for the grant of the visa under cl.186.223 in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) required that for applicants in the TRT stream, the position to which the application relates was the subject of an application for approval of a nominated position under reg.5.19(3) of the Regulations. Clause 186.223 relevantly stated:-

   “(1)  The position to which the application relates is the position:

   (a)  nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

   (b)  in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and

   (c)  in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)  The Minister has approved the nomination.

   (3)  The nomination has not subsequently been withdrawn.

   …

   (4)  The position is still available to the applicant.

   (5) The application for the visa is made no more than 6 months after the Minister approved the nomination.”

3. On 25 August 2015 the nomination lodged by Raaz Pty Ltd, being the nomination referred to in cl.186.223(1) of the Regulations, was refused by a delegate of the Minister of Immigration and Border Protection (‘the delegate’).

4. On 31 August 2015 a letter offering the Applicant natural justice was sent to the Applicant’s authorised migration agent. This letter granted the Applicant 28 days to provide a response.  The 28 days expired.  The Department of Immigration and Border Protection (‘the Department’) did not receive a response from the Applicant to an invitation to comment on adverse information for the Employer Nomination (Class 186) visa application.

5. In the correspondence from the Department to the Applicant of 31 August 2015, the Department advised relevantly as follows:-

   “Action Required

   The nomination submitted to the department by RAAZ PTY. LTD listing you as their Nominee has been refused.  Unfortunately this means that your visa application cannot be approved.  There are two options you can now take in relation to this decision:

   1. Withdrawing your Application

   As there is no possibility of your application being approved you may wish to withdraw your application, if so you must advise the department in writing.  By withdrawing your application you give up any rights to appeal with the Administrative Appeals Tribunal.  A request for a refund can be submitted but will only be granted in very limited circumstances.

   2. Refusal of Application 

   If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused.  If your application is refused you are able to appeal the decision with the Administrative Appeals Tribunal.  A request for a refund will not be approved.

   Outcome should you choose to withdraw your application

   You and your dependents currently hold a bridging visa which was granted to allow you to stay in Australia while your application was being processed.  Your bridging visa will cease 28 calendar days from the date you are advised that I have accepted your letter requesting a withdrawal of your application.  Unless you are granted another visa or have in place an application for another visa then you must depart Australia in this 28 day period prior to your bridging visa ceasing.  It is not possible to reconsider an application once it has been withdrawn.  Should you choose to withdraw this application you will not be entitled to seek a merits review at the Administrative Appeals Tribunal.

   Outcome should you choose not to withdraw your application

   If you choose not to withdraw your application I will proceed to make a decision on your application.  This decision will result in a refusal of your application. Should your visa application be refused you are entitled to seek a merits review of this decision at the Administrative Appeals Tribunal...”

6. By decision of 15 October 2015 the delegate refused to grant the visas. The delegate noted that a visa could not be granted unless the Applicant met the relevant legal requirements that were specified in the Act and Regulations. The delegate noted the legal requirement in cl.186.223 of Schedule 2 to the Regulations had not been met by the Applicant on the date the delegate made his decision. The delegate found the relevant nomination to which the visa application related had not been approved. As the Applicant was not the subject of an approved nomination under the Direct Entry or Labour Agreement streams of the subclass 186 visa, the delegate refused the application for the visa.

The Tribunal

1. On 28 October 2015 the Applicant applied to the Tribunal for review of the delegate’s decision and provided a copy of the delegate’s decision to the Tribunal.

2. On 6 February 2017 the Tribunal wrote to the Applicant, pursuant to s.359A of the Act, inviting the Applicant to comment on or respond to information relevantly as follows:-

   “The particulars of the information are:

   1. According to information before the Tribunal, you were nominated for the purposes of your subclass 186 visa application by an employer, RAAZ PtY LTD (‘RAAZ’), in accordance with r.5.19(4) of the Migration Regulations 1994 (“the Regulations”) for an appointment in the business. However, on 25 August 2015 a delegate of the Department refused the application for approval of the nominated position lodged by RAAZ.

   2. According to Tribunal records, RAAZ has not applied to the Tribunal for review of the relevant decision to refuse its employer nomination application in relation to you.

   The information contained in paragraphs 1-2 is relevant to the review as it could, subject to your comments, lead the Tribunal to find that you do not satisfy the criteria for the visa because the relevant nomination to which your application relates has not been approved, as required by cl.186.223(2). If so, this would be the reason, or a part of the reason, for affirming the decision of the delegate under review.

   You are invited to give comments on or respond to the above information in writing.

   Your comments or response should be received by 20 February 2017...”

3. The Applicant responded to the s.359A of the Act invitation on 17 February 2017 stating that there had been a significant period of time for the delegate to finalise the case from the time the application was lodged to the time the nomination was refused, and that she believed her employer lodged an appeal against the nomination application.

4. On 3 March 2017 the Tribunal invited the Applicant to attend a hearing before it on 31 March 2017 to give evidence and present arguments relating to the issues arising in the Applicant’s case.  On 7 March 2017 the Applicant’s representative responded to the hearing invitation indicating that the Applicants would attend, together with their registered migration agent.

5. The First and Second Applicants attended the Tribunal hearing on 31 March 2017.  The Applicant provided the Tribunal with:-

   a)a statutory declaration of the former director of Raaz Pty Ltd concerning the duties performed by the Applicant;

   b)a copy of a letter from the Department dated 17 March 2017 notifying the Applicant of the decision to refuse her a subclass 190 visa;

   c)the Applicant’s skills assessment result and copies of the Applicant’s tax and PAYG records.

6. The Tribunal on 21 April 2017 made its decision affirming the decision to refuse the Applicant’s employer nomination visas.  The Tribunal said in paragraphs 13 and 14 of the Statement of Decision and Reasons (‘the Decision Record’), the following, relevantly:-

   “13. As set out in the Tribunal’s s.359A letter, according to Tribunal records, the applicant’s employer, RAAZ, has not applied for review in relation to the decision of the Department to refuse its employer nomination application in respect of her. Notwithstanding the applicant’s belief to the contrary, no evidence has been provided to show otherwise. To the extent that the applicant commented on the time taken by the Department to finalise its decision, this also does not establish that the relevant nomination has been approved or is the subject of a review application before the Tribunal. To the extent that the applicant provided evidence relating to the recent refusal of her subclass 190 visa, this evidence was not relevant as it related to a separate visa refusal that is not presently under review.

   14. On the evidence before it, the Tribunal is not satisfied that the relevant nomination has been approved. Moreover, in circumstances where the relevant time period has long expired for the applicant’s employer to seek review of the nomination refusal, the Tribunal is not prepared to delay the finalisation of this matter.

   15. Therefore, cl.186.223 is not met.”

Consideration

1. The 16 grounds of review as set out in the Applicant’s application fail to raise an arguable case for the relief claimed. 

2. The 16 grounds of review are annexed to these reasons (‘Annexure A’).

3. Grounds 1 and 16 are not proper grounds of judicial review.

4. 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.

5. 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.

6. 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.

7. 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.

8. Grounds 12 and 15 cannot succeed. The Tribunal complied with its procedural fairness requirements under Division 5 of Part 5 of the Act.

9. Ground 11 seeks impermissible merits review.

10. The application must fail and costs shall follow. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 May 2018

‘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. ln 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. l 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).