Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1469
•24 November 2023
FEDERAL COURT OF AUSTRALIA
Sidhu v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1469
Appeal from: Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 207 File number: VID 733 of 2021 Judgment of: BEACH J Date of judgment: 24 November 2023 Catchwords: MIGRATION — appeal from Federal Circuit and Family Court — no jurisdictional error — no question of principle — appeal dismissed Legislation: Migration Act 1958 (Cth) ss 359, 359A
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Migration Regulations 1994 (Cth) cl 457.223(4) of Schedule 2
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 41 Date of hearing: 24 November 2023 Counsel for the Appellants: The first appellant appeared in person. Counsel for the First Respondent: Mr J. Simpson Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs and otherwise did not appear ORDERS
VID 733 of 2021 BETWEEN: SUKHDEEP SINGH SIDHU
First Appellant
BALJEET KAUR LATALA
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellants pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J:
The appellants applied for visas which required the first appellant to be the subject of an approved nomination by a sponsoring employer; the second appellant is the wife of the first appellant. A delegate of the Minister refused the visas.
The appellants sought a review of that decision before the Tribunal which found that the first appellant did not satisfy the mandatory requirement that he be the subject of an approved nomination. There was no evidence before the Tribunal that the first appellant was the subject of an approved nomination by a sponsoring employer. Accordingly, the Tribunal affirmed the decision to refuse to grant the visas.
The appellants sought judicial review in the Court below, but the primary judge found no jurisdictional error in the Tribunal’s decision.
The appellants now appeal the primary judge’s decision, but for the reasons that follow I would reject their appeal.
Relevant background
The appellants are citizens of India. On 11 August 2015 they applied for Temporary Business Entry (Class UC) (subclass 457) visas. The first appellant, who was the primary applicant, relied on a nomination by DR&J Fabbris Pty Ltd (the sponsor) for the position of manufacturer.
On 29 September 2015, the Minister’s delegate refused to grant the visas. The delegate was not satisfied that the first appellant had the skills, qualifications or employment background necessary to perform the nominated occupation of manufacturer, as required by the then cl 457.223(4)(da) of Schedule 2 to the Migration Regulations 1994 (Cth). Clause 457.223(4) at the relevant time provided:
(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; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and
(ba)either:
(i)the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d) the Minister is satisfied that:
(i)the applicant’s intention to perform the occupation is genuine; and
(ii)the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation—the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)if:
(i)the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii)in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb) if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea)(i) and (ii) does not apply;
the applicant:
(iv)has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(iv)achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency—the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
The delegate did not address whether the first appellant was the subject of an approved nomination. But this later turned out to be the dispositive issue before the Tribunal.
On 13 October 2015, the appellants applied to the Tribunal for a review of the delegate’s decision.
On 27 October 2016, the Tribunal invited the appellants to provide information under s 359 of the Migration Act 1958 (Cth), including information to demonstrate that the first appellant was the subject of an approved nomination which had not ceased, as required by cl 457.223(4)(a), or would meet this requirement in the near future.
On 28 November 2016, the appellants’ representative provided two letters from the then Department of Immigration and Border Protection to the sponsor, being a letter dated 28 November 2016 acknowledging receipt of a nomination application from the sponsor, and a letter dated 24 November 2016 acknowledging receipt of a sponsorship application from the sponsor.
On 7 February 2017, the first appellant attended a hearing before the Tribunal.
At that time the Tribunal raised the issue of whether the first appellant met cl 457.223(4)(a), which required that there was an approved nomination of an occupation relating to the first appellant by a standard business sponsor that had not ceased. The Tribunal decided to postpone making its decision until the Department had made its decision on the sponsor’s nomination application.
On 28 February 2017, the Tribunal invited the appellants to comment on or respond to information under s 359A, being that the sponsor had withdrawn its nomination application. The Tribunal indicated that if this information was to be relied on, the Tribunal would be required to affirm the delegate’s decision on the basis that the first appellant did not satisfy cl 457.223(4)(a).
On 14 March 2017, the appellants’ representative responded, confirming that the sponsor had withdrawn the nomination application, but indicating that the sponsor had lodged a further nomination application. A letter from the Department acknowledging receipt of that second nomination application was attached.
On 20 April 2017, the Tribunal again invited the appellants to comment on or respond to information under s 359A, being that the sponsor’s second nomination application had been refused on 13 April 2017.
On 20 April 2017, the appellants’ representative responded, confirming the second nomination application had been refused and attaching the Department’s refusal letter and decision. No other information was provided by the appellants to the Tribunal.
On 8 May 2017, the Tribunal affirmed the delegate’s decision to refuse to grant the visas. The Tribunal was not satisfied that the first appellant was the subject of an approved nomination.
On 29 May 2017, the appellants filed an application for judicial review in the Court below. On 2 November 2021, the primary judge dismissed that application.
The appellants have brought the present appeal from that decision.
The National Operations Registrar referred the matter to me on 6 January 2023 for disposition.
The present appeal
In essence, ground one asserts that the primary judge failed to adequately consider the submissions and evidence placed before him. But the ground does not identify what submissions or evidence were not adequately considered. The affidavit of the first appellant only suggests that he informed the primary judge that he was “concerned that there was a substantial breach of natural justice and procedural fairness as the decision of the Tribunal erred in its decision”, and that the primary judge “appears to have just made its decision based on the written submissions made by the Minister”.
In my view this ground does not assist the appellants. The primary judge properly understood and considered the grounds of review.
The primary judge gave the first appellant an opportunity to elaborate on the grounds of review and outline any additional concerns he might have with the Tribunal’s decision, and explained that the Court could only address the issue of jurisdictional error on the part of the Tribunal.
Further, contrary to what is now asserted by the first appellant, the first appellant only told the primary judge that he was concerned that the Tribunal did not take into account or properly assess his qualifications and work experience. The primary judge considered that concern but found that there was no basis for any asserted error. Further, the primary judge considered the appellants’ procedural fairness and natural justice concerns in his decision. Finally, it is apparent from the primary judge’s reasons that he brought an independent mind to the application, contrary to what has been asserted by the first appellant.
Let me turn to ground two which has various elements.
Ground two in its first element asserts that the primary judge misunderstood the requirements of cl 457.223(4)(a). It was said that at the time of the application for review, the sponsorship application had been approved.
Now at the relevant time, cl 457.223(4)(a) required inter-alia that a nomination of an occupation in relation to the visa applicant has been approved (cl 457.223(4)(a)(i)) and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved (cl 457.223(4)(a)(ii)); I do not need to say anything about cl 457.223(4)(a)(iii).
Now the Tribunal was aware that the sponsor had been approved as a standard business sponsor. But that fact did not answer the further requirement that the sponsor’s nomination of the first appellant be approved. The primary judge was correct to find that once the Tribunal had determined that there was no approved nomination, the only decision open to it was to find that the appellants did not satisfy cl 457.223(4)(a).
Ground two in its second element takes issue with the primary judge’s finding that an applicant is required to satisfy each subclause of cl 457.223(4). But given the use of the word “and” after each subclause, the primary judge’s construction is the obvious and correct construction. No alternative construction has been offered.
On that basis, and contrary to the third element of ground two, the primary judge was correct to find that there was no error disclosed in the Tribunal not proceeding to make findings on whether the first appellant satisfied the other requirements of cl 457.223(4). Given that the first appellant did not satisfy cl 457.223(4)(a), it was unimportant to the disposition of the review whether any of the other subclauses were met.
Ground three asserts that the primary judge failed to find that the Tribunal acted unreasonably and denied procedural fairness by failing to deal with the application for review in a timely manner. The delay asserted was from the time of filing of the application through to early 2017.
Now this ground of appeal was not asserted before the primary judge. The Minister says that the appellants require leave to raise this new ground and the Minister opposes such leave. But in the circumstances I will grant leave to raise this point. Let me dispose of it.
Now the Tribunal took some 19 months to complete its review, but that timeframe is not unusual. Nor did it prejudice the appellants. At no point in that 19-month period was the first appellant the subject of an approved nomination.
Further, the documentary evidence before the Tribunal confirms that the first nomination application was withdrawn, but does not suggest that the application was approved prior to it being withdrawn. It would seem that the primary judge’s references to the first nomination being “approved” and then “subsequently withdrawn” were in error. But this is of no moment. Further, the second nomination application was refused.
Further, the time taken by the Tribunal reflects the steps it took to afford the appellants procedural fairness. The Tribunal awaited the outcome of both the first and second nomination applications before making its decision. Further, the Tribunal invited the appellants to comment on the outcome of both of those applications, which the Tribunal was required to do under s 359A. The appellants were not denied any opportunity to present their case. Moreover, the Tribunal gave the appellants many opportunities to establish that the first appellant was the subject of an approved nomination. They did not do so. There is no substance to ground three.
Ground four asserts that the primary judge failed to consider that the Tribunal erred by not considering “critical factors” presented before it. But no particulars of these “critical factors” have been given. Indeed, the Tribunal considered the evidence and submissions relevant to the key issue of whether the first appellant was the subject of an approved nomination.
Let me make one other point.
The subclass 457 visa was abolished as from 18 March 2018 and replaced with the subclass 482 visa. The Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) revoked all subclass 457 visa conditions in schedule 2 to the Regulations as from that date, including cl 457.223. The effect of this change was to close the subclass 457 visa to fresh nomination applications. In those circumstances, there is an argument that the first appellant could not satisfy the visa criteria even if the matter were remitted to the Tribunal. Remittal arguably would be an exercise in futility. It is not necessary to discuss further any retrospectivity question given that none of the grounds of appeal have been made out in any event, save to say that although there were transitional provisions preserving the old regime for nomination applications that had not been determined before the new regime came into place, in the present context whatever relevant applications had been made were disposed of before the new regime came into place; so, the transitional arrangements would not assist the first appellant.
Conclusion
None of the appellants’ grounds of appeal have been made out. The appeal must be dismissed with costs.
Let me make one other observation that I would not usually make, but in the circumstances it is warranted.
The first appellant appeared before me this afternoon via a video-link from Darwin, which was no doubt disadvantageous to him. He had recently travelled to Darwin from Melbourne for work. I found him to be quite proficient in English, respectful and, clearly, hardworking. It may be open to the Minister to consider granting the first appellant an analogous new visa under the current regime providing that the relevant conditions are satisfied. That will be a matter for the appellants to pursue if they so wish.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 24 November 2023
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