SINGH v Minister for Immigration

[2018] FCCA 1773

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1773

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.359A, 359B, 379A, 476
Migration Regulations 1994 (Cth), Sch.2, cl.186.223

First Applicant: JATINDER SINGH

Second Applicant: NARINDER DEEP KAUR

Third Applicant: SIDHAKPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1016 of 2017

Judgment of: Judge Hartnett

Hearing date: 25 June 2018

Delivered at: Melbourne

Delivered on: 25 June 2018

REPRESENTATION

The First Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Nyabally

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1016 of 2017

JATINDER SINGH

First Applicant

NARINDER DEEP KAUR
Second Applicant

SIDHAKPREET SINGH
Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for an order to show cause pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’), filed by the Applicants on 18 May 2017. The Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 21 April 2017 which affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicants’ Employer Nomination (Permanent) (Subclass 186) visas (‘the visa’).

2. The grounds of the application are as follows:-

   “1. Applicant had lodged an application for Employer Nomination (class EN) Employer Nomination (subclass 186) visa on 05^th November 2014 which has been wrongly decided.

   2. Applicant is a genuine and sponsor genuinely required the nominee in their business as the nominee held the relevant skills and experience. The Immigration Department and the Administrative Appeals Tribunal has made an error in deciding the application hence why we seek review at Federal Court to attend to the jurisdictional error which has occurred.

   3. Applicant wishes for a fair chance and requests the Judicial courts to kindly review the matter and provide him with justice as he has been denied justice and there has been a jurisdictional error in deciding this case.

   4. After receiving the refusal notification from the Immigration Department and Border Protection, applicant decided with the sponsor to lodge a review application at the Administrative Appeals Tribunal however the tribunal made an unfair decision which jurisdictional error.  Due to the failure in considering the errors on the applications by the Department of Immigration and Border Protection the decision is unfairly made.  The relevant queries have been addressed yet the case officer has made an error in their judgement.

   5. The business owner is affected by this incorrect decision and wish to have this decision reviewed as the position is genuinely required.  The business owner will be affected; in fact the business will be affected.  Applicant and sponsor hope for a fair chance and request the Judicial courts to kindly review the matter and provide her with justice as she has been denied justice.”

   (Errors in original).

3. As can be seen from the above, the Applicants take issue with the decision of the Tribunal without particularisation as to how the Tribunal decision is attended by jurisdictional error.  Further, the grounds contain submissions and make reference to the fairness of the decision.  Ground 5 refers to the “business owner”, who is not a party to these proceedings, and whose circumstances, save as those circumstances that affect the Applicants, are not being considered in this proceeding.

4. The First Respondent argues that the application fails to raise an arguable case for the relief claimed and ought be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

Background

1. The First Applicant (‘the Applicant’) is a male citizen of India.  On 5 November 2014, he lodged an application for the visa on the basis that he satisfied the primary criteria.  The Applicant sought the visa in the Temporary Residence Transition (‘TRT’) stream, to work in the nominated occupation of cook.  The TRT stream is designed for subclass 457 visa holders who have worked for their employer for two years, and where the employer has offered them a permanent position.  The Applicant had been working for Ms Amutha Rasanthan (‘the sponsor’) for the previous two years prior to lodgement of the application, and as a cook.

2. The Second and Third Applicants are the Applicant’s spouse and child who applied for the visa as secondary applicants.  The Applicant has now had two more children. The Applicant’s spouse and their three children are currently living in India.  The Applicant claimed he returned to Australia from India for the purposes of this hearing.

3. A primary criterion that applied to the grant of the visa was cl.186.223(2) in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which required that the Minister approve a nomination to which the visa application related.

4. On 12 June 2015, the Department wrote to the Applicant through his appointed migration agent, and invited him to respond in writing within 28 days after deemed notification of that letter to information that the nomination submitted by the sponsor had been refused on 12 June 2015.

5. On 2 July 2015, the Applicant’s representative responded in an email and explained that the Applicant’s sponsor had lodged a review of the decision to refuse the nomination application.

6. On 17 July 2015, a delegate of the Minister made a decision to refuse to grant the Applicant the visa. The delegate refused to grant the visa because the Applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the relevant nomination to which the application related had not been approved. The delegate found also that because the Applicant was unable to meet cl.186.223 of Schedule 2 to the Regulations, the dependent Applicants were also unable to meet the criteria for the visa.

7. On 17 July 2015, the Applicants applied for a review of the delegate’s decision to the Tribunal.

8. On 19 April 2016, the Applicants’ representative emailed the Tribunal to advise that the Applicant’s wife had given birth to twins.  A completed notification of changes in circumstances form was submitted on 19 April 2016 advising:-

   “Newly added family members twins born.  Passport and birth certificates attached.”

9. By letter dated 10 March 2017, the Tribunal invited the Applicants to comment on or respond to information in writing that it considered would be the reason, or part of the reason, for affirming the decision under review.  That correspondence noted that:-

   “The particulars of information are:

   ·According to information before the Tribunal, you were nominated for the purposes of your subclass 186 visa application by an employer, Amutha Rasanthan (Rasanthan), in accordance with rule 5.19(3) of the Migration Regulations (1994) (“the regulations”) for an appointment in the business. However, on 12 June 2015 a delegate of the Department refused the application for approval of the nominated position lodged by Rasanthan.

   ·On 2 July 2015, Rasanthan applied to the Tribunal for review of that decision by the delegate.  However, on 3 March 2017, the Tribunal affirmed the delegate’s decision.

   This information is relevant to the review as it could, subject to your comments, lead the Tribunal to find that you do not satisfy the criteria for the visa because the relevant nomination to which your application relates has not been approved, as required by 186.223(2).  If so, this would be the reason, or a part of the reason, for affirming the decision of the delegate under review.

   You are invited to comments on or respond to the above information in writing.”

10. The above invitation complied with ss.359A(1) and 359B of the Act and was sent to the Applicant’s representative by email to the address provided by the Applicant in the application for review in accordance with 379A(5) of the Act.

11. The Applicant’s migration agent responded to the invitation within the required timeframe advising that he had not been authorised to provide information but that the Applicant would contact the Tribunal directly if he wanted to provide anything further. The Tribunal considered that “whilst brief”, this constituted a response to the s.359A letter, and the Applicant did not forfeit his right to a hearing.

12. On 31 March 2017, the Tribunal invited the Applicants to appear at a hearing before the Tribunal scheduled on 21 April 2017.  The Applicant appeared at the scheduled hearing before the Tribunal on 21 April 2017, however, the Second and Third Applicants did not attend.

The Tribunal Decision

1. By decision of 21 April 2017, the Tribunal affirmed the delegate’s decision. In the Tribunal’s consideration of claims and evidence (as set out in its Statement of Decision and Reasons (‘the Decision Record’)) the Tribunal set out in paragraph 9, the requirements of cl.186.223 of Schedule 2 to the Regulations. The Tribunal had regard to the evidence that was before it and said in paragraph 14 of the Decision Record:-

   “On the evidence before it, the Tribunal is not satisfied that the relevant nomination has been approved. Therefore, cl.186.223 is not met.”

2. The Tribunal also found, correctly, and as set out in paragraph 15 of the Decision Record, that:-

   “…the Tribunal does not have any discretion to waive or amend the requirement for an approved nomination under r.186.223.”

3. Given the Tribunal’s finding that the Applicant did not meet the criteria for the grant of the visa, and the lack of any claims or evidence to show that either of the secondary Applicants met the primary criteria for the grant of the visa, the Tribunal also found they were not entitled to the visa.

Consideration

1. The Applicant’s grounds of review as set out in the application filed in this Court on 6 August 2015 fail to raise an arguable case for the relief claimed. Accordingly the application will be dismissed with costs under r.44.12(1)(a) of the Rules.

2. The Applicant was afforded procedural fairness and the Tribunal complied with all its statutory obligations.

3. The Applicant’s simple assertion that the Tribunal decision was “wrongly decided” goes no further than an assertion.  In fact, the Tribunal made the correct decision, and the only decision available to it, in the circumstances of this case.

4. The Department’s decision to refuse the nomination application and the subsequent decision of the Tribunal, differently constituted to affirm the delegate’s decision, are not matters the subject of this application for judicial review. The grounds that relate to those matters, being grounds four and five, are misconceived.

5. The Tribunal was tasked with reviewing the delegate’s decision to refuse the Applicants’ visa applications.  In the absence of an approved nomination, the application for the visa could simply not succeed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  6 July 2018