Singh v Minister for Immigration
[2020] FCCA 2663
•24 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2663 |
| Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where the applicant had no approved nomination – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 360, 476 Migration Regulations 1994 (Cth), cl.187.233 of sch.2 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | JAGDEV SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 485 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 September 2020 |
| Date of Last Submission: | 21 September 2020 |
| Delivered at: | Perth |
| Delivered on: | 24 September 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 485 of 2019
| JAGDEV SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India (Court Book (“CB”) 1-29). He arrived in Australia in 2008 on a student visa (CB 20). He subsequently held a Temporary Graduate visa (CB 33).
On 28 November 2016, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”). The applicant’s “nominated position” was as an “Electrical Engineering Draftsperson” for the company “AICA Engineering Pty Ltd” (the “sponsor”) (CB 1-29).
On 5 May 2017, the then Department of Immigration and Border Protection sent the applicant an invitation to comment on information which stated that the sponsor’s nomination had been refused. The refusal of the sponsor’s nomination meant that the applicant could not be granted the visa (CB 33-36). No response was received from the applicant in relation to the invitation to comment.
On 7 June 2017, a delegate of the first respondent (the “Minister”) refused to grant the visa. The delegate found that the applicant did not meet cl.187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) because the applicant was not the subject of an approved nomination (CB 37-43).
On 15 June 2017, the applicant sought review of the delegate’s decision in the Administrative Appeals Tribunal (the “Tribunal”) (CB 44-45).
On 27 September 2019, the Tribunal sent the applicant an invitation to comment on or respond to information that the Tribunal believed would be the reason for affirming the delegate’s decision. The particulars of the information were as follows (CB 54-57):
On 27 September 2019, the Tribunal made a decision to affirm a decision to refuse a nomination in respect AICA Engineering Pty Ltd. Consequently, the decision made by the Department of Immigration on 4 May 2017, to refuse the nomination stands.
The Tribunal granted an extension of time for the applicant to respond to the invitation (CB 58-61).
On 25 October 2019, the applicant’s representative contacted the Tribunal and advised (CB 62):
Thank for your earlier consideration to allow my client some time to comment.
Unfortunately he has been unsuccessfull yet again in obtaining any concrete information from his employer.
He understands the ramifications of this and wants to merely inform the Tribunal of his situation and circumstances and will await for your reply regardless
(Without alteration)
On 13 November 2019, the applicant attended a hearing before the Tribunal with his migration agent (CB 72-74).
That same day (13 November 2019), the Tribunal affirmed the delegate’s decision to refuse the visa (CB 75-81).
On 12 December 2019, the applicant applied to this Court for judicial of the Tribunal’s decision. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). It is uncontroversial that to succeed in this Court, the applicant must establish that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 23 paragraphs.
The Tribunal began by outlining the procedural background to the matter (at [1]-[6]).
The Tribunal then provided a summary of the correspondence exchanged between the Tribunal and the applicant. The Tribunal highlighted the particulars of the invitation to comment and the representative’s response (at [8]-[12]).
After identifying that the relevant issue before the Tribunal was whether the applicant was the subject of an approved nomination (at [13]), the Tribunal summarised the principles relevant to the visa being sought, as follows:
14. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
15. In addition, this criterion also requires that:
• the person who will employ the applicant is the person who made nomination
• the nomination has been approved and has not been subsequently withdrawn
• there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of r.1.13A and r.1.138); or it is reasonable to disregard any such information
• the position is still available to the applicant, and
• the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal then summarised the history of the decision to refuse the sponsor’s nomination. Importantly, the Tribunal noted that the sponsor’s review of the nomination decision had been affirmed. The Tribunal then explained that the Tribunal had provided the applicant with an opportunity to respond to the decision to refuse the sponsor’s nomination pursuant to s.359A of the Act (at [16]-[18]).
The Tribunal explained that at the hearing it asked the applicant if he had anything to submit (at [19]). The applicant “explained that he thought everything was fine with his visa application and had been reassured by the sponsor and his agent”. The Tribunal expressed its sympathy for the applicant’s situation (at [20]).
The Tribunal found as follows (at [21]):
On the basis of the evidence before it, the Tribunal finds that the nomination made by AICA Engineering Pty Ltd, the nomination referred to in cl.187.233(1) has been refused. Therefore, cl.187.233(3) is not met.
The Tribunal affirmed the decision to not to grant the visa (at [22]).
Proceedings in this Court
The applicant’s application for judicial review filed 12 December 2019 contains 7 “grounds of review”, as follows:
1.On 28 November 2016, I applied for the (Regional Sponsored Migration Scheme) Subclass 187 visa application under the Direct Entry stream to work in the nominated position of Electrical Engineering Draftsperson (ANZSCO 312311).
2.I was meeting all the visa requirements for (Regional Sponsored Migration Scheme) (Permanent) (Class RN) Subclass 187 visa application.
3.The Minister for Home Affairs refused to grant (Regional Sponsored Migration Scheme) (Permanent) (Class RN) Subclass 187 visa application.
4.In the decision letter, it was stated that I did not meet cl.187.233 of Schedule 2 to the Regulations because the nomination in relation to the application had been refused.
5.On 15 June 2017, I applied for the review of the decision with Administrative Appeals Tribunal. The employer also applied for the review of the decision with the Administrative Appeals Tribunal and with his application submitted a copy of the primary decision record.
6.On 13 November 2019, The Administrative Appeals Tribunal affirmed the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa where I was fulfilling all the requirements.
7.I am not satisfied with the decision of the Administrative Appeals Tribunal. I want the Honourable Federal Circuit Court to consider my application for the review of the decision.
(Without alteration)
The applicant filed an affidavit affirmed 12 December 2019. The affidavit repeats the grounds of review.
The applicant was given an opportunity to file any affidavit evidence, written submissions or amended application. No further materials were provided.
The materials before the Court are thus limited to the judicial review application filed 12 December 2019, a Court Book numbering 83 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 14 August 2020.
The applicant appeared before the Court without legal representation. While a Punjabi interpreter was provided to assist the applicant, he advised that he would only need to use the interpreter if he experienced difficulty understanding. Ultimately, the applicant did not require the services of the interpreter. He was able to converse in English with the Court and responded to the Minister’s submissions. The Court is satisfied that the applicant was able to participate in the hearing without issue.
At the start of the hearing the Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions filed 14 August 2020.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on, and further particularise, his grounds of review and to advise the Court if there was anything else he thought that the Tribunal “did wrong”. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decision or grant the visa that is sought. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that he came to the Court for “justice”. He explained that the sponsor did not disclose anything to him and had advised him that “everything was good”. He also stressed that the sponsor had “cheated him” and he needed justice from the Court.
The Court is not unsympathetic to the concerns raised by the applicant. His situation is, regrettably, all too similar to the situation faced by many who appear before this Court.
Unfortunately, the Court cannot assist the applicant. The only issue before the Tribunal was whether the applicant met the criterion for the visa. While the sponsor’s actions may or may not have prevented the applicant from meeting those criterion, that is not a matter this Court can address. Nor was it a matter that the Tribunal was able to consider. There was simply no discretion for the Tribunal to waive the relevant criterion.
The applicant’s oral submissions do not identify any jurisdictional error.
Consideration of Grounds of Review
The grounds of review largely restate the facts relevant to this matter. Grounds 1, 3, 4 and 5 are factual matters that are not in dispute and are apparent from the materials provided in the Court Book.
In relation to ground 2, the applicant states that he met “all the visa requirements” for the grant of the visa. To the extent that this relates to the applicant meeting the requirements at the time of the delegate’s decision, this Court has no jurisdiction in relation to the delegate’s decision: the Act, s.476(2) and (4).
Further, whether the applicant was of the view that he met the criterion at the time of the delegate’s decision has no bearing on the issue of whether there is jurisdictional error in the Tribunal’s decision. The Tribunal’s decision supplants the delegate’s decision.
In relation to grounds 6 and 7, these can be interpreted generally as an expression of the applicant’s dissatisfaction with the Tribunal’s decision. Dissatisfaction does not amount to jurisdictional error. The grounds rise no higher than seeking impermissible merits review.
Having reviewed the materials in the Court Book in detail, the Court is satisfied that the Tribunal did not err in finding that the applicant did not “fulfil” the visa requirements. The applicant was not the subject of an approved nomination. As the Tribunal correctly noted, there is no discretion to waive the requirement that an applicant have an approved nomination.
The fact that the applicant was not the subject of an approved nomination was put to the applicant under s.359A of the Act prior to the Tribunal hearing. He was invited to a hearing pursuant to s.360 of the Act and was again asked to comment on this issue at the hearing.
Here, the Tribunal came to the only conclusion open to it in light of the evidence before it. It also gave the applicant every opportunity to participate in the review process.
None of the grounds in the judicial review application identify jurisdictional error.
Futility
Clause 187.233(3) of Schedule 2 to the Regulations requires the applicant to be the subject of an approved nomination identified in the visa application at the time of the decision. The application cannot be assessed against a new nomination application subsequently lodged by the employer: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[90].
As he sponsor’s nomination was refused by the delegate, the appeal of that decision to the Tribunal was unsuccessful and there is no evidence of a judicial review application being filed, on remittal the applicant could never satisfy cl.187.233. Remittal would thus be futile.
Conclusion
The applicant’s application for judicial review of the Tribunal’s decision fails to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error. It is also the case that, even if an error were identified, remittal of the decision would be futile.
The application is, accordingly, dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 24 September 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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