Singh and Ors v Minister for Home Affairs and Anor (No.2)

[2019] FCCA 1875

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR HOME AFFAIRS & ANOR (No.2) [2019] FCCA 1875

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Temporary Business Entry (Class UC) visa – application for Temporary Work (Skilled) (subclass 457) visa – delegate refused to grant visa – whether the Tribunal made a jurisdictional error – no jurisdictional error was made – application is dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch.2 cl 457.223

Cases cited:

Minister for Immigration and Border Protection v Haq [2019] FCAFC 7

First Applicant: JANPAL SINGH

Second Applicant: NAVJOT KAUR

Third Applicant: EKAM KAUR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1060 of 2018

Judgment of: Judge Humphreys

Hearing date: 8 July 2019

Date of Last Submission: 8 July 2019

Delivered at: Parramatta

Delivered on: 8 July 2019

REPRESENTATION

First Applicant appeared in person

Solicitors for the Respondents: Mr Hutton, AGS

ORDERS

1. The application is dismissed.

2. The Applicants pay the First Respondents costs fixed in the amount of $5,090.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1060 of 2018

JANPAL SINGH

First Applicant

NAVJOT KAUR

Second Applicant

EKAM KAUR

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. On 17 November 2015, the applicants, consisting of husband Janpal Singh (“first applicant”), his wife Navjot Kaur (“second applicant”) and their child Ekam Kaur (“third applicant”), applied for a Temporary Business Entry (Class UC) subclass 457 visa. The first applicant was the primary applicant.

2. A delegate of the Minister for Home Affairs (“the Minister”) refused the visas on 29 July 2016 on the basis that cl 457.223(4)(a) of the Migration Regulations 1994 (Cth) (“the Regulations”) was not met. This was on the basis that the first applicant’s sponsor was no longer an approved sponsor. The first applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). After an initial hearing in late 2017, the matter was adjourned to enable the first applicant more time and on 21 March 2018, the Tribunal affirmed the delegate’s decision.

3. The first applicant now seeks judicial review of the Tribunal’s decision.

Background

1. When the first applicant came before the Court, he made an application for an adjournment to seek legal advice. That application was refused in a separate judgment. The basis for that refusal was that the first applicant had had more than sufficient time to arrange legal representation. In fact, the applicant told the Court he was only going to see a legal representative this afternoon. Bearing in mind the number of matters before the Court, the need to finalise matters and the reasons given by the first applicant, the application for an adjournment was refused.

Administrative Appeals Tribunal Decision

1. The first applicant was originally sponsored by Inhouse Depot Pty Ltd for the position of a Retail Buyer. The sponsor, Retail Depot Pty Limited, was an approved sponsor with an agreement in place from 8 July 2014 to 8 July 2017. The sponsor was linked to the first applicant’s application to the Tribunal but did not appear at the hearing listed on 9 February 2018.

2. A check of the Australian Securities and Investment Commission (ASIC) database revealed that the sponsor was under external Administration. From what the Court has been told, although I am not certain, the actual entity, Retail Depot Pty Limited, has been wound up. What is certain is that it is no longer in a position to be an approved sponsor. As a result, the sponsor was unable to continue with its sponsorship application and the application for review was made to the Tribunal.

3. At the Tribunal hearing, the first applicant acknowledged that the sponsor on his subclass 457 visa application was no longer able to sponsor him as they had gone into voluntary administration (see paragraph 20 of the Tribunal’s decision).

4. The first applicant advised the Tribunal he had submitted two further visa applications and was now working as a chef in a restaurant in Nowra. The first applicant provided to the Tribunal an acknowledgement letter from the Department of Home Affairs of a nomination from Vishwa Mitta International Pty Limited, trading as the Holy Cow Indian Cuisine.

5. The Tribunal noted that cl 457.223(4)(a) of the Regulations ‘requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.’ The requirements were no longer met due to the original sponsor being in Administration. Accordingly, the Tribunal affirmed the decision of the delegate.

6. The second and third applicants based their application on the application of the first applicant. The first and second applicants therefore did not meet the prescribed criteria for the issue of a subclass 457 visa as members of the family of a person who holds a subclass 457 visa. The Tribunal accordingly affirmed the delegate’s decision in relation to these applicants.

Grounds of Appeal.

1. There are nine Grounds of Appeal which are set out as follows as they appear in the application:

   1)On the 17th November 2015, we applied for a Temporary Business Entry (Class UC) Visa where Janpal Singh was the primary applicant and Navjot Kaur (wife) and Ekam Kaur (child) were the secondary applicants.

   2)The delegate refused to grant our visas on the 29 July 2018 on the basis that cl 457.233(4) of the Migration Regulations 1994 (Cth) was not met because the primary applicant was not the subject of an approved nomination.

   3)After this refusal we took our case to Administrative Appeals Tribunal (AAT) for review. As part of this review we provided all the necessary documentation and evidence required but the case was rejected and the decision of the delegate was affirmed by the AAT on the 21 March 2018.

   4)We have endured a very tough time during this whole procedure and we explained our situation clearly to the AAT and also the Department of Home Affairs but they did not consider these compelling reasons and rejected our visa.

   5)We believe that a jurisdictional error was made by the AAT in finalising their decision which is why we are lodging this application with the Federal Circuit Court (FCC).

   6)The unfair and unjust decision of the Department of Home Affairs and AAT will ruin our whole families lives and future.

   7)This is why we wish for the FCC to investigate this matter further and find any jurisdictional error present so that our case can be returned to the AAT for reassessment.

   8)We have applied for another substantive visa and are waiting the decision of this. We are model citizens that have always followed all rules and requirements of Australia. We want to await the decision of our substantive visa so if it is approved we can have a future in Australia.

   9)We hope and pray that the outcome of this judicial review application will be positive for us so that we can be one step closer to making our dream of living in Australia come true.

Applicant’s Submissions

1. The first applicant appeared before the Court unrepresented. No written submissions to the Court had been filed. The first applicant told the Court that he was in the process of making a further application for sponsorship but that had not been decided. Mr Hutton, who appeared on behalf of the Minister, advised the Court that two previous applications, which were alluded to in the Tribunal’s decision, had been refused. The first applicant did not add anything further to the Grounds of Appeal in oral submissions.

Respondent’s Submissions

1. The first respondent submitted that the case was analogous to that of Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 (“Haq”), being a decision of Griffiths, Gleeson and Colvin JJ, particularly at paragraphs [46] and [59]. In that decision, the Court looked at whether or not it was reasonable for the Tribunal to refuse to adjourn a matter while a further application was made. In that case, all of the Judges came to the conclusion that it was a reasonable outcome for the Tribunal not to grant a further deferral of the application, bearing in mind the circumstances of that case.

Considerations

1. The Grounds of Appeal contain mainly background information and are not proper Grounds of Appeal. The only substantive ground which can be described as approaching a proper Ground of Appeal is Ground 5, being there was jurisdictional error by the Tribunal in finalising their decision. No particulars are provided as to the jurisdictional error. In my view, properly understood, Ground 5 appears to take issue with the decision of the Tribunal at paragraphs 26 - 29, not to defer making a decision in relation to the decision under review, while the first applicant awaited the outcome of two further substantive visa applications.

2. Reading from the Tribunal’s decision, the Tribunal fairly considered the submissions made by the first applicant. It noted the delay in making fresh applications and the unknown factor as to how long the fresh applications might take to be determined.

3. In my view, the Tribunal properly exercised a discretion not to adjourn the matter, given it had already postponed the hearing from November 2017 to February 2018 to allow the first applicant to appear. I am satisfied that the circumstances in this matter are analogous to that outlined by the Full Court of the Federal Court of Australia in the decision of Haq and that no jurisdictional error is apparent on the face of the record.

Conclusion

1. The applicant is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  5 August 2019