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

[2015] FCCA 1411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2015] FCCA 1411

Catchwords:
MIGRATION – Application in a case to set aside orders dismissing application for non-appearance – factors for consideration – whether merit in substantive application.

Legislation:

Migration Act 1958 (Cth). ss.65, 474, 476

Migration Regulations 1994 (Cth), Sch.2, cl.857.221, reg.5.19(4)

Bhullar vMinister for Immigration & Anor(No.2) [2013] FCCA 350
Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
MZZET v Minister for Immigration & Anor [2014] FCCA 214
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Singh v Minister for Immigration & Anor [2015] FCCA 1028
Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521
SZCTQ v Minister for Immigration [2005] FMCA 252

First Applicant: KIMAT SINGH

Second Applicant: MANDEEP KAUR

Third Applicant: GURNUR KAUR CHEEMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 372 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 27 May 2015

Date of Last Submission: 27 May 2015

Delivered at: Perth

Delivered on: 27 May 2015

REPRESENTATION

For the First Applicant: In person

Counsel for the First Respondent: Ms L Gallagher

Counsel for the Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $3416 by 27 July 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 372 of 2014

KIMAT SINGH

First Applicant

MANDEEP KAUR

Second Applicant

GURNUR KAUR CHEEMA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore and revised)

Introduction

1. This is an application in a case filed by the applicants to set aside orders made by the Court on 21 April 2015 dismissing the applicants’ judicial review application for non-appearance and ordering that the applicants pay the first respondent’s costs: Singh v Minister for Immigration & Anor [2015] FCCA 1028 (“Singh (No.1)”). The application in a case was made on 19 May 2015 seeking that the orders be set aside and was supported by an affidavit sworn by Mr Singh (“Mr Singh’s Affidavit”).

2. Mr Singh’s Affidavit, indicates at paragraphs 2 and 3 that the decision to dismiss the judicial review application was because of his non-appearance at the hearing, and that he was ill and unable to attend because of illness and that he had sent a medical certificate to the Court and a copy of that certificate is annexed to the affidavit.  In its terms the affidavit provides no new evidence additional to that which was before the Court on the occasion the orders were made on 21 April 2015 and the Reasons for Judgment in Singh (No.1) delivered extemporaneously.

3. In cases of this type the basis on which the Court may set aside orders previously made are succinctly set out in Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521 at [19] per Lucev FM where reference is also made to SZCTQ & Minister for Immigration [2005] FMCA 252 at [10]-[12] per Barnes FM, and those bases are as follows:

   a)that there is an adequate reason for the non-appearance;

   b)that there is no delay in making the application to set aside;

   c)whether the party in whose favour orders have been made would be prejudiced by a new hearing in any respect, which could not be adequately compensated by a suitable award of costs or the giving of security; and

   d)that there is an arguable case on the merits of the substantive application.

4. In relation to whether or not there is an adequate reason for the non-appearance, as the Court has already indicated, nothing additional by way of new evidence is tendered to the Court by the applicant and the Court is in those circumstances content to indicate that the reason for the applicants’ non-appearance on the last occasion remains inadequate for the reasons set out in Singh (No.1) at [9] per Judge Lucev.

5. The Court acknowledges that there has been no significant delay in making the application to set aside, it having been made less than a month after the orders sought to be set aside were published. Allowing some time for the receipt of those orders by the applicants, the Court does not consider that that delay would be fatal to proceeding with a hearing of the application to set aside.

6. The background to the application is as follows:

   a)the first applicant was born on 17 November 1984 in India: Court Book (“CB”) 3;

   b)the first applicant applied for the Employer Nomination Visa on 27 February 2012: CB 3-23;

   c)the first applicant’s wife (the second applicant) and daughter (the third applicant) applied as members of the applicant’s family unit;

   d)on 6 January 2014 the Delegate refused to grant the Employer Nomination Visa on the basis that the applicants did not meet the criteria in cl.857.22l(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) because the first applicant did not hold a nomination by an employer in accordance with reg.5.19(4) of the Migration Regulations that had been approved: CB 122-123;

   e)on 16 January 2014 the applicants lodged an application for review of the Delegate’s Decision to the Tribunal: CB 126-133;

   f)on 9 September 2014 the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in the case: CB 150-151; and

   g)on 24 October 2014 the applicants attended the Tribunal hearing: CB 154-155.

7. The Tribunal Decision is relatively short and is set out in full, as follows:

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 January 2014 to refuse to grant the applicants Employer Nomination (Residence) (Class BW) visas under s.65 of the Migration Act 1958 (the Act).

   2. The applicants applied for the visas on 27 February 2012 on the basis of the first named applicant's (the applicant) proposed employment in the position of Retail Manager (ANZSCO 142111) with APF Enterprises Pty Ltd (as trustee for the NBN Unit Trust), operating a Nando's restaurant at the time of nomination. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

   3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting the requirements of r.5.19(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

   4. The delegate refused to grant the visas because the applicant did not meet cl.857.213 of Schedule 2 to the Regulations as a consequence of the Department's decision to refuse to approve the corresponding nomination from APF Enterprises Pty Ltd.

   5. APF Enterprises Pty Ltd applied for review of the decision to refuse to approve the nomination. On 24 October 2014, immediately before the commencement of the hearing in this review, I affirmed the decision to refuse to approve the nomination. My reasons for doing so are set out in my decision record for that matter (1318804).

   6. The first-named applicant appeared before the Tribunal on 24 October 2014 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

   7. Using the procedure provided for by section 359AA of the Act, I apprised the first-named applicant of my decision to affirm the decision to refuse to approve APF Enterprises Pty Ltd's nomination (Mr Singh had in any event been present throughout the hearing and decision in that matter).

   8. In response, Mr Singh explained that he had been poorly advised by a previous agent who had nominated an inaccurate ANZSCO code. Mr Singh was frustrated that friends in similar situations had visas approved years ago, and he felt disadvantaged because the Department had taken a long time to refuse the nomination and the rules had changed in the meantime. 1 confirmed that Mr Singh had no further response to add to the adverse information I had raised.

   9. I acknowledge Mr Singh's frustrations and disappointment with this situation. I explained to him in response to his request for advice as to what to do next that his migration agent is best placed to assist him.

   CONSIDERATION

   10. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated has been approved.

   11. As a consequence of my decision to affirm the decision to refuse to approve the nomination I find that the appointment in the business of the employer for which the applicant has been nominated has not been approved. It follows, and I find, that the first-named visa applicant does not satisfy the requirements of cl.857.221 of Schedule 2 to the Regulations.

   12. As this is an essential criterion for the grant of the visa in his circumstances, I must affirm the decision to refuse to grant the applicant a Class BW visa.

   13. In respect of the remaining review applicants, I must also affirm the decision to refuse to grant them Class BW visas. The remaining review applicants rely on their status as members of the family unit of the first-named visa applicant, and as such cannot now satisfy the secondary criteria for the grant of the visa.

   DECISION

   The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Residence) (Class BW) visas.

   CB 167-168.

8. So in essence the Tribunal found that:

   a)the appointment in the business of the employer for which the applicant had been nominated was not approved, and as such the applicant failed to satisfy cl.857.221 of Schedule 2 to the Migration Regulations; and

   b)accordingly, the Tribunal affirmed the delegate’s decision not to grant the applicants employer nomination visas.

9. The judicial review application which was made by the applicant under s.476 of the Migration Act and which was dismissed in Singh (No.1), outlined the following grounds:

   1.  The Decision Makers overlooking the compassionate aspect of the review application.

   2.  The Tribunal member ignored the fact that refusal of the nomination was beyond my control and the employer was ready to give me same job at his new business.

10. The Tribunal decision is only reviewable by this Court if it is affected by jurisdictional error: ss.474 and 476 of the Migration Act; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An error by the Tribunal only constitutes jurisdictional error if the Tribunal:

    a)identifies a wrong issue;

    b)asks the wrong question;

    c)ignores relevant material; and

    d)relies on irrelevant material,

    in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceed or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225.

11. In this case the Tribunal correctly referred to cl.857.221 of Schedule 2 to the Migration Regulations as requiring the applicant to hold an appointment in the business of the employer for which the applicant had been nominated and approved, and that in assessing whether the applicant held the relevant approved nomination it was not for the Tribunal to consider any purported compassionate aspects or whether the refusal of the nomination was beyond the applicant’s control.

12. The Tribunal, in the reasons for judgment, considered the correct issue by reference to the criterion in cl.857.221 of Schedule 2 to the Migration Regulations, correctly identified the relevant law and reached factual conclusions open to it on the evidence including those, in particular, at [10]-[12] of the Tribunal decision, and thereby satisfied itself that the criteria for the grant of the employer nomination visa had not been made out for the purposes of s.65 of the Migration Act, and therefore made a decision open to it on the evidence and within the scope of its powers under the Migration Act.

13. In relation to the two grounds in the dismissed judicial review application it can be seen that there are no compassionate aspects to be considered. It is simply a question of whether or not the criteria were met. And it must also be observed that the Tribunal member did not ignore any relevant facts – that is, relevant to the criteria that it had to consider – in relation to the nomination and approval process. In the circumstances it is plain that there is no jurisdictional error in the Tribunal decision and for that reason the substantive application has not only no reasonable prospect of success or no arguability, but no prospect of success at all.

14. It follows from the authorities, including Bhullar vMinister for Immigration & Anor(No.2) [2013] FCCA 350 and MZZET v Minister for Immigration & Anor [2014] FCCA 214 – to which reference was made by counsel for the Minister – that the application to set aside cannot succeed because there is no arguable case on the merits of the substantive application. And also, as the Court adverted to earlier, that there is no adequate reason for the non-appearance and there is at least some prejudice to the Minister if the application in a case were to succeed and the earlier orders were to be set aside.

15. The Court has concluded that:

    a)the application in a case ought to be dismissed for the reasons that the Court has outlined; and

    b)the applicant must pay the Minister’s costs in the sum of $3416 by 27 July 2015.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 4 June 2015