Singh v Minister for Immigration
[2016] FCCA 2267
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2267 |
| Catchwords: WORDS AND PHRASES – Customer Service Manager. |
| Legislation: Migration Act 1958 (Cth), ss.360, 360A, 363B, 359A, 379A, 379C Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration vSZRKT [2013] FCA 317 |
| Applicant: | JATINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRTAIVE APPEALS TRIBUNAL |
| File Number: | SYG 3350 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Hillary of DLA Piper |
ORDERS
The matter is to be heard on a final basis.
The application filed 2 December 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3350 of 2014
| JATINDER SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRTAIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 6 November 2014. The Tribunal affirmed a decision of the delegate of the Minister not to grant Mr Singh a temporary business entry visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 23 August 2016.
Background
Mr Singh is a male citizen of India.
On 7 November 2012, Mr Singh applied for a temporary work (class UC) subclass 457 visa. Mr Singh indicated that Dreamz Unlimited Pty Ltd (trading as Pizza Hut Russell Lea) was his sponsoring employer for the position of Customer Service Manager. Mr Singh was assisted in making that application by a registered migration agent.
On 18 April 2013, the Minister’s delegate invited Mr Singh to provide comments on information that the nominated occupation was not genuine. On 15 May 2013, Mr Singh's representative wrote to the delegate providing copies of Mr Singh's qualifications and a letter from Mr Singh's sponsoring employer dated 15 May 2013 setting out Mr Singh's history with the employer and what role he would be performing in the position of Customer Service Manager.
On 24 May 2013, the delegate refused the application on the basis that Mr Singh did not meet clause 457.223(4)(d) of Schedule 2 of the Migration Regulation 1994 (Cth) (the Migration Regulations) as it was found the nominated occupation was not genuine.
On 5 June 2013, Mr Singh applied to the Tribunal to review the delegate's decision.
a)On 16 June 2014, the Tribunal wrote to Mr Singh inviting him to provide information to demonstrate that he was the subject of an approved business nomination which had not ceased.
b)On 22 July 2014, the Tribunal wrote to Mr Singh inviting him to attend a hearing before it scheduled for 18 August 2014. The hearing invitation also invited Mr Singh to provide information as to whether there was an approved and current nomination for his occupation by an approved business sponsor and whether the position associated with the nominated occupation was genuine.
c)On 11 August 2014, Mr Singh wrote to the Tribunal confirming that his nomination for his occupation had been refused on 29 July 2014 and that his sponsoring employer had sought review of that decision in the Tribunal on 7 August 2014. Consequently, Mr Singh sought the Tribunal to combine the two Tribunal applications and that his hearing date be extended by two weeks so that further documentation could be collated by his sponsoring employer. On 13 August 2014, the Tribunal refused the request for an adjournment.
The decision of the Tribunal
The Tribunal noted that the issues before it were whether Mr Singh met the requirements of clause 457.223(4)(a) and 457.223(4)(d).[1]
a)In respect of the first issue, whether there was an approved nomination of an occupation relating to Mr Singh by a standard business sponsor that has not ceased pursuant to clause 457.223(4)(a), the Tribunal noted that the application to the Tribunal to review the nomination by an approved business had been allocated to the same member and that this review would not be conducted for some time. Consequently, the Tribunal noted that it would not refuse the application on the basis that Mr Singh did not have a current approved nomination at that time.[2]
b)In respect of the second issue, whether Mr Singh's intention to perform the occupation of Customer Service Manager is genuine and the position associated with the nominated occupation was genuine, the Tribunal found that the position would involve duties and responsibilities falling within the general description of the manager occupational group, as set out in the ANZSCO.[3]
[1] Tribunal Decision (TD) [8]
[2] TD [12]
[3] TD [18]
The Tribunal accepted that Mr Singh played an active role in promoting his sponsor's business to corporate clients and that he had a business card referring to his title as “Customer Service Manager”.[4] However, the Tribunal did not accept that Mr Singh had a role in developing customer service procedures or that the problems addressed by Mr Singh were complex or long standing or that he planned or conducted quantitative and qualitative surveys.[5] Consequently, the Tribunal did not accept that the nominated position was a position in the occupation of “Customer Service Manager” as described in ANZSCO[6] and, therefore, this description was not an appropriate descriptor for someone who was predominantly responsible for providing good customer service and promoting the franchise .[7]
[4] TD [31]
[5] TD [32]
[6] TD [33]-[34]
[7] TD [34]
Consequently, the Tribunal was not satisfied that Mr Singh met clause 457.223(4)(d) and, therefore, Mr Singh was not entitled to the grant of the visa.[8]
[8] TD [38]-[40]
Present proceedings
These proceedings began with a show cause application filed on 2 December 2014. The matter was listed today for a final hearing but it did not appear that a direction or order to that effect has been made. To avoid doubt I directed that the hearing proceed on a final basis.
The sole ground in the application is:
1. MRT made wrong assumption that franchise agreement cover policies around customer service. Customer service policies are decided by the store.
In an accompanying affidavit, which I received as a submission, Mr Singh asserts that the Tribunal made wrong assumptions and that his position is a genuine one.
I have before me as evidence the court book filed on 20 January 2015. I invited oral submissions from Mr Singh today. He attended in person, together with his employer, Mr Khana.
Mr Singh told me that the process of seeking his visa had been a protracted one. It appears that he was initially successful in obtaining an employer nomination from Mr Khana but that by the time his visa application came to be considered that nomination was more than 12 months old. A further nomination was sought but, as is indicated above, that was refused. When the matter came before the Tribunal, Mr Singh sought to have the review of the nomination and the review of the visa decision consolidated in one hearing. As the Tribunal makes clear at paragraphs [11] and [12] of its decision,[9] the Tribunal discussed at the hearing with Mr Singh the issue that he did not have a current approved nomination.
[9] Court Book (CB) 287
The Tribunal decided to proceed on the basis that it would look at other issues than the approved nomination, in circumstances where the issue of the nomination was before the Tribunal in a separate review. On 19 November 2015 I made orders standing over this matter, pending the outcome of the appeal before the Full Federal Court in Ahmad v the Minister for Immigration.[10] That decision was handed down on 16 December 2015. As matters have transpired, there is nothing in that decision that impacts upon this case.
[10] [2015] FCAFC 182
That is because the Tribunal appears to have assumed that it had jurisdiction to deal with Mr Singh’s visa application, notwithstanding that he did not have, at the time of the Tribunal decision, an improved employer nomination. The Tribunal, to that extent, successfully anticipated the decision of the Full Federal Court.
Mr Singh disagrees with the decision of the Tribunal. He believes that his job is accurately described as a customer service manager. He was initially concerned that the Tribunal regarded his job as not a genuine one. It is plain, however, from the Tribunal decision that the Tribunal accepted that the job is genuine and that many of Mr Singh’s functions involve working with customers to ensure good customer service and product reliability. His job might be accurately described as a quality assurance officer or even a customer service officer. The Tribunal did not attempt its own definition but the Tribunal was not satisfied that the job was accurately described as a customer service manager.
In my view, the conclusions reached by the Tribunal were open to it on the material before it. The decision is a rational one and there were no false assumptions made by the Tribunal. In other respects, I agree with the Minister’s submissions.
At [26] of the Tribunal's decision record, it was noted that the Tribunal traversed at the hearing with the applicant whether there was a franchise agreement and whether there were customer service policies associated with the agreement. The Tribunal further recorded that, at the hearing, Mr Singh stated that he used the policies of the franchisor and he did not create policies.
At [31] the Tribunal accepted that Mr Singh filled a customer service role. However, at [32] the Tribunal did not accept that Mr Singh had a role in developing customer service procedures, policies and standards. The Tribunal found that Mr Singh's sponsor used procedures, policies and standards developed by the franchisor. This finding was open to the Tribunal to make on the basis of the material and evidence before it, particularly the oral evidence given at the hearing.
Pursuant to s.360 of the Migration Act 1958 (Cth) (the Migration Act), Mr Singh was invited to a hearing to present arguments and evidence in support of his application. That hearing invitation complied with all of the statutory and regulatory requirements.[11] The hearing invitation also put Mr Singh on notice of some of the issues that would be raised at the hearing and requested further information in respect of those issues.
[11] Ss.360A, 363B, 379A, 379C of the Migration Act and regulation 4.21 of the Migration Regulations.
At the hearing the issues dispositive of the review were traversed with Mr Singh and he was given an opportunity to present his arguments and evidence in support of his application. No s.359A issues arose.
In its decision record, the Tribunal referred to all of the documentary and oral evidence before it.[12] At [16] the Tribunal recorded that it had regard to the description of the relevant occupation in ANZSCO,[13] but that it only used it as a guide. Ultimately the Tribunal's findings were open to it to make on the material and evidence before it and for the reasons it gave.
Lee and Ahmad
[12] Cf Minister for Immigration vSZRKT [2013] FCA 317.
[13] This document is not binding on the Tribunal but the courts have found that it is not desirable that such a document be applied inconsistently (SZRQR v Minister for Immigration & Anor [2013] FMCA 21 per Nicholls J at [74]. See also Drake and Minister for Immigration (No.2) (1979) 2 ALD 634 at 639.)
The Minister submits and I accept that the present matter is not affected by either Minister for Immigration v Lee& Ors[14](Lee) or Ahmad. The Tribunal noted that the application to the Tribunal to review the nomination by an approved business had been allocated to the same member and that this review would not be conducted for some time. Consequently, the Tribunal noted that it would not refuse the application on the basis that the applicant did not have a current approved nomination at that time[15] and instead, went on to consider whether the associated position was a genuine one.
[14] [2014] FCCA 2881
[15] TD [12]
As such, the matter is not Lee affected. In Lee the nomination had ceased before the application for review of the visa refusal was made.
Furthermore, the matter is not affected by the Full Court's decision in Ahmad as the Tribunal in this matter implicitly found that it had jurisdiction to review the visa refusal.
I conclude that Mr Singh is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,400 which is below the scale amount prescribed at the time the application was filed. Mr Singh remains concerned about proceedings before the Tribunal and the fact that there appears not to have been a decision made on his employer, Mr Khana’s nomination. That is a matter which he is free to pursue with the Tribunal. It does not, however, impact on the issue of costs.
I will orders that Mr Singh is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 September 2016
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