Singh v Minister for Immigration

[2018] FCCA 2828

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2828

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.66(2), 140E, 140GB

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: RANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 878 of 2017

Judgment of: Judge Vasta

Hearing date: 31 August 2018

Date of Last Submission: 31 August 2018

Delivered at: Brisbane

Delivered on: 31 August 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant.

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. That pursuant to r.13.03(c)(1)(e) of the Federal Circuit Court Rules 2001 the Application filed 30 August 2017 be dismissed.

2. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 878 of 2017

RANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant, Ranjit Singh, applied for what is colloquially known as a 457 visa.  To apply for such a visa, to apply for such a visa, a person needs to have an approved business sponsor. 

2. The Applicant nominated his sponsor as SGRD Enterprises Pty Ltd.  They ran a business trading as Singh’s Eatery.  The application was made on 19 August 2016. 

3. The department realised, when looking at the application, that the sponsor did not have an approved nomination at the time that Mr Singh made his application.  As a result, such an application could not succeed.

4. On 13 December 2016, the department wrote to the Applicant through his registered migration agent, asking him to comment on that circumstance.  The Applicant did not reply to that invitation. 

5. However, an application to become an approved sponsor was lodged by SGRD Enterprises Pty Ltd on 9 January 2017.  That application was refused on 26 May 2017. 

6. On the day that the refusal was made, the department again invited the Applicant to comment on that information that he, the Applicant, did not have an approved sponsor in place, and therefore the application was not going to be successful.  The Applicant did not respond to this invitation.

7. On 24 June 2017, the delegate refused to grant the Applicant the 457 visa on the basis that the prerequisite of having an approved sponsor had not been met. 

8. Five days later, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of the delegate’s decision. On 4 July 2017, the Tribunal wrote to the Applicant, inviting him to comment on the validity of the application for review. The Tribunal told the Applicant that it was their preliminary view that they did not have jurisdiction in the matter because the Applicant was not identified in a nomination under s.140GB of the Migration Act 1958 (Cth) (“the Act”) that was approved or pending, nor was there a pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E or a decision not to approve the nomination under s.140GB of the Act. Again, the Applicant did not respond to that invitation.

9. On 3 August 2017, the Tribunal found that it had no jurisdiction to review the delegate’s decision.  The Tribunal, quite properly, in its one-page reason, noted that it had jurisdiction to review a decision if an application was validly made. 

10. The Tribunal considered that the decision to refuse the visa was reviewable if the Applicant had made his visa application while in the migration zone, which he had, and he had been sponsored by an approved sponsor, but, because he had not been sponsored by an approved sponsor, nor was there, at that time, or subsequently, for that matter, an application by that sponsor to have the decision not to approve them as an approved sponsor dealt with by the Tribunal. Because neither of those prerequisites existed, the Tribunal did not have jurisdiction to look at the matter.

11. The Tribunal noted that the Applicant was invited to comment on the validity of the application for review, but the Tribunal received no response at all from the Applicant. 

12. On 30 August 2017, the Applicant filed an originating application in this Court, asking this Court to review the decision of the Tribunal.  The grounds of the application do not make much sense, but I will read them into the record.

    1. Notification of refusal of application for a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa was sent on 24th June 2017.  I have applied for AAT after refusal to challenge DIBP decision.

    2. DIBP or Migration Agent never advised me that I have to lodge nomination application for validity of my visa refusal application.  In natural justice letter, DIBP never explained me that I have to lodge AAT for nomination application.  When I lodged AAT, they said it’s invalid because nomination application AAT is not been lodged.

    3. I request Federal Court to consider my application, so I can lodge new nomination from my Business.  Additionally, I request Federal Court to validate my application at tribunal to consider for fair trial.

13. The Applicant appeared on the first court date of his application, that is, on 3 October 2017, before Registrar Belcher.  Registrar Belcher made a number of orders as to the provision of the court book but also added that, by 4.00 pm on 30 November 2017, the Applicant should file and serve any amended application upon which he intended to rely.  The registrar made a number of orders as to the filing of written submissions but also ordered that the application be adjourned to a date to be fixed for final hearing before Judge Howard, sitting at Brisbane.

14. On 8 March 2018, Judge Egan made orders that the matter be set down for final hearing at 9.30 am today, 31 August 2018, before himself.  That order was sent to the Applicant via email that same day, to the email address that had been given.

15. The notice told him that the matter had been listed on Friday, 31 August at 9.30 am, before Judge Egan, and gave a phone number to call if there were any queries.  Because that email gave a listing date, that then put the dates for the written submissions that Registrar Belcher had made into context.  It meant that the Applicant had to file his submissions in mid-August and that the Minister had to file their submissions by 22 August. 

16. The Minister did file their submissions on 22 August, and I have been told by Ms Helsdon, who appears for the Minister today, that the submissions were emailed to the Applicant, and a reminder was given to the Applicant of the hearing today.

17. There has been no bounce-back of that email, nor has there been any other correspondence by the Applicant to either the Minister or to the Court.  Because of a number of administrative matters, the matter was not going to be heard by Judge Egan but was going to be heard by me. 

18. I came to court at 9.30am.  The Applicant had been called three times.  He did not appear.  An interpreter who had been booked for him has appeared today, but the Applicant has not. 

19. I gave the Applicant a half-hour’s grace and stood down till 10.00am.  In the meantime, my Associate, out of an abundance of caution, went to Judge Egan’s Court, just in case the Applicant had turned up there.  He was not present.

20. As I am dictating these reasons, the time is now 10.15 am. Given this history, I am of the view that it is proper for the court to proceed with the matter and, pursuant to r.13.03C (1)(e) of the Federal Circuit Court Rules 2001 (Cth), hear and determine the matter on the merits.

21. As I have earlier said, the grounds of the application do not seem to make any sense.  I have been assisted by the written submissions of the Minister, who has actually answered each of the grounds, and I agree with those submissions.

22. Firstly, that ground one simply recites a procedural history, and therefore is not a substantive ground of review.

23. The Minister spoke of ground two being that the Applicant contends that neither the department, nor his migration agent advised him he had to seek merits review of the nomination decision in the Tribunal in order to enliven the Tribunal’s jurisdiction to review his application to it. 

24. The Minister infers that the Applicant was claiming that the department should have advised him to seek a merits review of the nomination decision in the Tribunal, and that claim is misguided. There is an exhaustive list of the information that the Minister must provide to an Applicant when notifying them of the decision pursuant to s.66(2) of the Act. That exhaustive list has been complied with, and the department had, on a number of occasions, asked the Applicant for his input into what was the fatal flaw in his application, and the Applicant declined to respond.

25. The Tribunal itself asked the Applicant to respond to their concerns, and the Applicant refused.  It seems to me that this complaint that the Applicant makes has absolutely no merit at all.  There has been no explanation given at all by the Applicant as to why he did not comply with the request to furnish some information to both the department and to the Tribunal.  To complain then that he had not been told anything by the Tribunal really smacks of humbug.

26. In any event, the Tribunal has complied with, and the Minister has complied with, all of their requirements under the Act, and there can be no jurisdictional error seen there at all.

27. Ground three is not a substantive ground of review and is really asking the Federal Court to somehow put themselves in the shoes of the AAT and just grant the applicant a visa.  That ground again does not show any jurisdictional error. 

28. Having gone through the reasoning of the Tribunal in my recitation of the history of the matter, it is clear that the Tribunal has acted according to law, and there is no jurisdictional error at all in the reasoning of the Tribunal.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018