Singh v Minister for Immigration

[2017] FCCA 205

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 205

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Business Entry (Class UC) subclass 457 visa – requirement to have an approved nomination that had not ceased – approval in present case had ceased.

Legislation:
Migration Act 1958 ss.359C, 360(3), 363A
Migration Regulations 1994 Schedule 2, reg.2.75, cl.457.223(4)

Applicant: JASVIR SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2333 of 2015

Judgment of: Judge Riley

Hearing date: 31 January 2017

Date of last submission: 31 January 2017

Delivered at: Melbourne

Delivered on: 31 January 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore Lawyers

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS BY THE COURT

1. The application filed on 19 October 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2333 of 2015

JASVIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The applicant applied for a Temporary Business Entry (Class UC) subclass 457 visa. One of the requirements for the visa was set out in cl.457.223(4)(a)(iii) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). That clause required that the applicant have in place an approved employment nomination which had not ceased as at the time of the Tribunal’s decision.

2. The applicant did have an approved sponsor. The Department of Immigration and Border Protection (“the Department”) gave approval to the applicant’s sponsor on 24 August 2013. However, that approval expired pursuant to reg.2.75 of the Regulations 12 months after it was granted. That means that the applicant’s approval expired on 24 August 2014.

3. In the meantime, a delegate of the Minister had decided that the applicant’s application should be refused, on the basis that the applicant’s intention to perform the occupation and the position associated with the nominated occupation were not genuine, contrary to the requirements of cl.457.223(4)(d) of Schedule 2 to the Regulations.

4. The applicant then applied to the Tribunal on 16 April 2014.  The Tribunal wrote to the applicant on 9 January 2015 inviting the applicant to provide information.  The letter was sent, correctly, to the applicant’s migration agent.  The Tribunal noted that the delegate had refused the application because the delegate was not satisfied that the applicant intended to genuinely perform the nominated occupation and was not satisfied that the position associated with the nominated occupation was genuine.

5. However, the Tribunal’s letter said:

   Before considering those issues, the Tribunal first requires you to demonstrate that you are currently the subject of an approved nomination made by an Australian standard business sponsor.

   In this regard, you should note that under Regulation 2.75, an approved nomination made by a standard business sponsor remains valid for a maximum of only 12 months from the date the nomination was approved. (emphasis added)

6. The letter went on to say:

   If an approval of any nomination you held has ceased at the time the tribunal makes its decision, … you will not meet the criterion in cl.457.223(4)(a), which is a mandatory criterion for the visa. (emphasis in original)

7. The letter from the Tribunal then went on to invite the applicant to provide information that demonstrated that a nomination of an occupation made by a standard business sponsor in relation to the applicant had been approved and had not ceased.  The letter asked for the information to be provided by 23 January 2015.

8. The applicant’s migration agent replied by email on 23 January 2015.  The agent said that the applicant had applied for a new nomination on 22 January 2015 and asked the Tribunal to wait for a decision on that nomination before taking any action in relation to the applicant’s application. 

9. The Tribunal did wait.  The Tribunal sent the applicant another letter on 13 July 2015.  In that letter, the Tribunal said that it noted that an employer was seeking approval of a nomination for the applicant and then said:

   The tribunal considers that you have been given substantial time in which to pursue an approved nomination, and now requires you to provide information that you are the subject of an approved nomination. (emphasis in original)

10. The Tribunal required the applicant to provide the requested information by 27 July 2015.  The applicant’s migration agent replied on 27 July 2015 by email asking for an extension of two or three weeks in which to provide a response.  The Tribunal granted an extension of time until 26 August 2015. 

11. The applicant did not provide any information by 26 August 2015. The applicant’s migration agent did provide a response on 27 August 2015, but that was later than the time specified in the Tribunal’s extension of time letter. The Tribunal took the view that as the applicant had not provided information within the prescribed period, the applicant was not entitled to appear before the Tribunal. That was pursuant to s.359C, s.360(3) and s.363A of the Migration Act 1958 (“the Act”).

12. The Tribunal wrote to the applicant on 1 September 2015 saying that he had lost the right to a hearing.  The applicant did not respond to that letter.  The Tribunal then proceeded to make its decision without giving the applicant any further opportunity to appear before it.

13. The Tribunal noted that cl.457.223(4)(a) of Schedule 2 to the Regulations required that there be an approved nomination of an occupation relating to the applicant by a standard business sponsor that had not ceased at the time of the Tribunal’s decision. The Tribunal noted that it had requested the applicant to provide evidence of such an approved nomination, but that none had been forthcoming. The Tribunal concluded that it was not satisfied that there was evidence of an approved nomination before it, and therefore cl.457.223(4)(a) of Schedule 2 to the Regulations was not met. The Tribunal proceeded to affirm the delegate’s decision.

14. The applicant then applied to this court.  The application sets out one ground of review, which is as follows:

    457 Visa refused (approved nomination by immigration) imigration claimed customer service manager occuption can not sponser from retail enviornment and Jobs are more aligned with retail manager but my nomination as customer service manager is already approved by Department of imigration . Moreover my tasks was same as per guideline of respected Department of Imigration. (errors in original)

15. That ground appears to be taking issue with the delegate’s decision rather than the Tribunal’s decision.  This court is not empowered to review decisions of the delegate. 

16. Before the court this afternoon, the applicant said that the Department had approved his sponsor but the delegate had said his occupation was not genuine, then his nomination expired, and then the Tribunal affirmed the delegate’s decision because there was no approved sponsor at the time of decision.  The applicant said to the court that he told the Tribunal when he applied to the Tribunal that the sponsorship was valid when he made his application to the Tribunal. 

17. That may be so. However, the clear requirement of the Regulations was that the nomination be approved and not have ceased as at the time of the Tribunal’s decision. It does not seem to me that the Tribunal made any error in that regard.

18. Clearly, the Tribunal did not afford the applicant a hearing. However, that was in accordance with the Act. As the applicant had not provided information in response to the letter dated 13 July 2015 within the required timeframe, the applicant lost his right to appear before the Tribunal. Indeed, the Tribunal was not permitted to give the applicant an oral hearing.

19. The Tribunal decided the case on a different basis to the basis on which the delegate decided the case. The explanation for that was set out in the Tribunal’s letter dated 9 January 2015. The letter said that cl.457.223(4)(a) of Schedule 2 to the Regulations required that the applicant have an approved nomination that had not ceased. The Tribunal explained in the letter that approved nominations cease 12 months from the date of their approval. The letter further explained that, if the approval of the nomination had ceased, then the applicant would not meet a mandatory criterion for the grant of the visa. By the Tribunal’s letter dated 9 January 2015, the applicant was given procedural fairness in relation to the new basis upon which the Tribunal made its decision.

20. It does not seem to me that the Tribunal made a jurisdictional error of any type in this case. The Tribunal appears to have applied the law correctly and to have given the applicant natural justice, to the extent it was required and permitted to do so by the Act. The Tribunal does not appear to have failed to take into account any relevant considerations or taken into account any irrelevant considerations.

21. In the circumstances, the application will be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     8 February 2017

Correction

The first respondent’s name was corrected on the first page of the reasons for judgment.