SINGH v Minister for Immigration

[2016] FCCA 1726

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1726

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal misapplied the relevant law – whether the Tribunal took irrelevant considerations into account – whether the applicant was denied procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359A, 476

Migration Regulation 1994, reg.5.19, sch.2, cl.187.233

Applicant: RANJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1996 of 2015

Judgment of: Judge Street

Hearing date: 8 July 2016

Date of Last Submission: 8 July 2016

Delivered at: Sydney

Delivered on: 8 July 2016

REPRESENTATION

The applicant appeared in person via videolink

Solicitors for the First Respondent: Ms S Sangha
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1996 of 2015

RANJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 26 June 2015 affirming a decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant is a citizen of India, and on 30 January 2015 the delegate refused to grant the applicant the regional employer nomination visa because the applicant did not meet the requirements of cl.187.233(3). That clause is as follows:

   187.23 Criteria for Direct Entry stream

   187.233  

   (1)  The position to which the application relates is the position:

   (a)  nominated in an application for approval that seeks to meet the requirements of:

   (i)  subparagraph 5.19(4)(h)(ii); or

   (ii)  subregulation 5.19(4) as in force before 1 July 2012; and

   (b)  in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)  The person who will employ the applicant is the person who made the nomination.

   (3)  The Minister has approved the nomination.

   (4)  The nomination has not subsequently been withdrawn.

   (5)  The position is still available to the applicant.

   (6)  The application for the visa is made no more than 6 months after the Minister approved the nomination.

2. Relevantly the delegate said that on 19 December 2014 the nomination application made by the proposed employer was refused.  The Tribunal referred to the fact that on 19 December 2014 a letter was sent to the applicant giving him an opportunity to comment on the nomination refusal and that no reply had been received.  On 5 February 2015 the applicant applied for review.  On 28 April 2015 the applicant was invited to appear before the Tribunal at a hearing to be held on 22 June 2015.  The applicant appeared before the Tribunal on that date to give evidence and present arguments, and was assisted by his registered migration agent. 

3. The Tribunal identified the reason why the delegate refused to grant the visa and made reference to a decision of the Tribunal on 26 June 2015 affirming the decision under review in respect of the nomination under reg.5.19 setting out reasons for refusing the nomination. That document was information that had not been provided to the applicant at the time of the hearing on 22 June 2015. 

4. The Tribunal found, having considered the available evidence before it, that it was satisfied that the position of pastry cook, the subject of the relevant nomination application was not the subject of any approved nomination, and accordingly that the applicant failed to satisfy the requirements of cl.187.233(3).  The Tribunal found that as it was not satisfied that the applicant met the requirements of cl.187.233(3) the applicant did not meet the requirements for the subclass 187 visa, and affirmed the decision under review.

5. On 20 August 2015 a Registrar of the Court made orders providing the applicant with an opportunity to file affidavit evidence, an amended application affidavit and submissions.  The applicant filed an affidavit, but no other documents.  On 8 April 2016 the matter was fixed for hearing and a further opportunity was given to the applicant to file any amended application, affidavit evidence or submissions.  No further documents were filed. 

6. The grounds of the application are as follows:

   1.The Tribunal made a point under section 5.19(4)(f) that nominator got a fine of $40000 which comes under adverse information but section 5.19(4)(f) also says that it is reasonable to disregard the adverse information .The Municipal city of Joondalup fined the business but that was cleared by the nominator and council check the premises of the business on regularly basis and there was no objection after that and business was running successfully. So I think it was unfair to refuse the application on this basis.

   2. The Tribunal also mentions the regulation 5.19(4)(g) that the application has a satisfactory record of compliance with the laws of the commonwealth.The Tribunal mention about the monitoring department in adverse information regarding 457 visa's and employer having issues with the wages of three employees but as a nominee i was not involved in that case and my employer rectified the situation and monitoring department did not put any sanctions on my employer. So i think this is unfair to refuse my nomination on this basis.

7. The applicant identified concern in relation to inconsistency of department information about the need for pastry cooks, and also sought to complain in relation to the process in respect of the refusal of the nomination application that gave rise to the non-compliance with cl.187.233(3).  I accept the submissions of the first respondent that nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. 

8. The solicitor for the first respondent also identified that the grounds in the application failed to address any relevant ground of error in respect of the decision made, the subject of the refusal of the visa.  The solicitor for the first respondent pointed out that the fine and the provisions referred to in the grounds were not relevant to the present visa application.  I accept the first respondent’s submission that nothing in the grounds of the application identifies any jurisdictional error by the Tribunal.

9. The solicitor for the first respondent has, however, drawn attention to the Tribunal taking into account the decision of the Tribunal on 26 June 2015 affirming the earlier decision refusing the nomination. The work done by s.359A(1) is focused upon information and not documents. It is apparent from the decision of the delegate that the issue in the present case relating to the refusal of the applicant’s visa was because the nomination had been refused, and that the applicant did not meet the requirements of cl.187.233(3). In these circumstances, whether the later document dated 26 June 2015 fell within any obligation under s.359A of the Migration Act 1958 requires consideration. 

10. On the material before the Court, I do not accept that the content of the Tribunal decision which was to the same effect as the decision of the delegate that refused the nomination enlivened any obligation under s.359A(1). Even if this Court were wrong in that regard this is a case where the finding of fact made by the Tribunal means that any error in respect of the s.359A information is not of a kind that could give rise to any utility in the granting of relief. That is because of the findings made by the Tribunal that the applicant does not meet the criteria under cl.187.233(3).

11. In those circumstances, even if it were the case that the taking into account of the decision dated 26 June 2015 was to be treated as a jurisdictional error enlivening the discretionary consideration as to whether relief should be granted, I am satisfied that the respondent has established that the findings made by the Tribunal in the present case mean that the grant of any relief would be of no utility. 

12. It is for these reasons that it is not appropriate to grant the applicant the relief sought in the application. 

13. The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 July 2016