SINGH v Minister for Immigration

[2016] FCCA 477

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 477

Catchwords:
MIGRATION – Show cause hearing – whether applicant met time of application criterion of one year’s employment in regional area – the applicant conceding requirement not met – application having no arguable case for the relief claimed – application dismissed. 

Legislation:

Federal Circuit Court Rules 2001, rr.44.11(b), 44.12

Migration Regulations 1994, cl.887.213

Migration Act 1958, s.359(2)

Applicant: SARBJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 630 of 2015

Judgment of: Judge Burchardt

Hearing date: 18 December 2015

Date of Last Submission: 18 December 2015

Delivered at: Melbourne

Delivered on: 18 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Ms Mitchell

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The application be dismissed pursuant to r.44.12(1) of the Federal Circuit Rules 2001.

2. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 630 of 2015

SARBJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 8 July 2015, by consent, Registrar Allaway set this matter down for trial for a show cause hearing pursuant to r.44.11(b) of the Court’s Rules. The show cause hearing, of course, is conducted pursuant

   
   

   to r.44.12. The question is whether or not the Court is satisfied that the applicant has raised an arguable case for the relief claimed.

2. The originating Application was filed on 27 March 2015.  It seeks review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 23 February 2015, by which the Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Residence) (Class VB) visa.  The grounds of application can shortly be stated as follows:

   “1.    I lived in Regional area more than 4 years.

   2.  I have been working in Regional area for more than 2 yrs.”

3. The applicant filed an Affidavit in Support of his Application, but that merely appends a copy of the Tribunal’s decision.

4. The Tribunal’s decision sets out the Application for Review. 

   
   

   At paragraph 3, the Tribunal noted that the delegate refused to grant the applicant the visa he sought, which was a Subclass 887 visa. 

   
   

   The Tribunal noted that the delegate was not satisfied that the applicant met the requirements of cl.887.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) because he had not worked full-time in the specified regional area for at least one year before he lodged his visa application.

5. The Tribunal accepted that the decision was a reviewable decision before it and noted that the Tribunal had invited the applicant

   
   

   to comment on departmental records regarding his immigration history in Australia.  It was noted (paragraph 9, CB 139) that the “information was relevant to the review was because it might find that the applicant’s employment history indicated that he did not meet the requirements of clause 887.213 and, if that were the case, it would have no alternative other than to affirm the decision under review.”

6. The Tribunal noted that in a letter sent to the applicant in accordance with the requirements of s.359(2) of the Migration Act 1958, it was explained that the applicant’s full-time employment for a total of at least one year must have been in existence at the time he lodged his visa application on 26 February 2014, rather than at the time of the Tribunal’s decision in 2015.

7. The applicant’s representative did not forward the applicant’s response to the Tribunal until 19 February 2015, two days after the date on which the Tribunal had given a time limit for its provision.  The Tribunal noted that this failure on the applicant’s part meant that he lost his right to appear before the Tribunal to give evidence and present argument.

8. Having made that finding, the Tribunal went on to consider the claims and evidence.  It noted at paragraphs 24 (CB 141) and following that departmental records indicated that the applicant first arrived in Australia on 12 February 2007 as the holder of a Student (Temporary) (Class TU) subclass 572 visa valid to 9 April 2009.  On 31 August 2009, the applicant was granted a further student (subclass 572) visa valid to 30 September 2009 and, on 26 February 2010, he was granted a Subclass 475 (Skilled – Regional Sponsored) visa valid to

   
   

   26 February 2013.  Additionally, on 10 September 2013 the applicant was granted a Skilled – Regional Sponsored (Provisional) (Class SP) subclass 489 visa.  It was noted that the applicant did not dispute those records in the response he forwarded to the Tribunal on 19 February 2015.

9. In the visa application itself (CB 63), the applicant had stated that he had been employed at 7-Eleven as a cashier from August 2007 to January 2010, and then at the Warburton Curry Club as a crew member since April 2013.  In a response to the Tribunal invitation dated

   
   

   3 February 2015, the applicant had stated that he had found it difficult to find employment in regional Australia and had been unable to do so.  He was referred to the Warburton Curry Club in January 2013 and commenced his employment with that business in April 2013.  As

   
   

   a result, the applicant requested the Tribunal take into account this employment from April 2013 to February 2015 for the purposes of his visa application, as he had been a law-abiding citizen.

10. The Tribunal recorded at paragraphs 29-32 (CB 142):

    “29.  The applicant also submitted copies of his PAYG Summaries for the 2013 and 2014 financial years, indicating that he had earned $8,372 and $28,980 at Anmol Sandhu Motors Pty Ltd, a business located in Warburton, Victoria.

    30.  Accordingly, based on the evidence before it, the Tribunal fins that the applicant was the holder of a subclass 475 visa at the time of application on 26 February 2014, which is a visa mentioned in clause 887.212.

    31.  The Tribunal notes that the evidence the applicant has submitted does not indicate when he was employed at 7Eleven, including whether he was employed with this business from August 2007 to January 2010.  In addition, the applicant’s evidence does not confirm that this employment was fulltime in the specified regional area.

    32.  In addition, the evidence before the Tribunal indicates that, whilst Warburton is in a specified regional area, the applicant was only employed there for approximately 10 months at the time of application on 26 February 2014.”

11. The Tribunal noted that the subsequent employment that the applicant sought be taken into consideration was not permitted by the wording of cl.887.213.

12. At paragraphs 34 and 35 (CB 142), the Tribunal found:

    “34.  Accordingly, based on the evidence before it, the Tribunal finds that the applicant had not worked fulltime in a specified regional area for a total of at least 1 year, as the holder of 1 or more of the visas mentioned in clause 887.212, when he lodged his visa application on 26 February 2014.  Therefore, the Tribunal finds that the applicant does not satisfy clause 887.213. 

    35.  It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.”

13. The first respondent filed written submissions on 4 December 2015.  The written submissions pointed to cl.887 of Schedule 2 of the Regulations and note that, pursuant to c.887.213, which is a time of application criterion, the applicant must have worked in a specified regional area for a total of at least one year as the holder of one or more of the visas mentioned in cl.887.212.  These written submissions refer to the various subclasses of visa that are specified in that clause.

14. Having traversed the way in which invitations to a Tribunal hearing can be sent, the written submissions go on to detail the history of the visa application itself. I note that, inter alia, in the information that the Tribunal sent to the applicant’s representative as being possibly relevant there was a reference to the fact that there was no evidence that the applicant’s employment at the Warburton Curry Club was on a full-time basis or – and this is more important – that he had commenced employment at the Warburton Curry Club in April 2013 and had therefore only worked for a total of 10 months and therefore might not meet the requirements of cl.887.213.

15. The response from the applicant’s representative at CB 128-131 relevantly confirmed that the applicant had commenced work in Warburton in April 2013 and had been working there since.

16. The written submissions go on to refer to the grounds of application and submit in paragraph 28 that these appear to be designed to challenge the merits of the Tribunal’s decision and do not indicate any jurisdictional error.  Further, it is submitted that the Tribunal’s decision that the applicant did not meet the one-year employment criterion was the only one open to it on the materials and that the way in which the Tribunal had proceeded, which did not involve the applicant actually attending the Tribunal, was open to it in the circumstances.

17. The applicant lodged written submissions on 11 December 2015.  These relevantly assert a history of grants of visas and repeat that he was unable to obtain work in the Albury area.  The submissions confirm that the applicant moved to Warburton and started working there from 1 April 2013 and had not worked in Albury before he moved to Warburton.  Essentially, the applicant asserted that because his last visa, valid to 26 February 2014, which was a subclass 489 visa, was going to expire, he had no option but to apply for the 887 visa.

18. The submissions conclude:

    “I am living in Australia from Last 8 and half years.  I lived in Regional Area more than 4 years.  I have worked 2 years in Regional Area.  I continue worked in regional Area while

    
    

    I applied subclass 887 and while on MRT Decision Pending.  Please consider my work till June 2014.”

19. When the matter was before the Court, the applicant essentially confirmed in his oral submissions the matters already in his materials filed with the Tribunal and asserted in his written submissions.

20. Counsel for the first respondent first read the affidavit of Emily Charlotte Wilde affirmed on 10 November 2015.  These put into evidence various screenshots relevant to the applicant.  They confirm that the applicant had a “SP” subclass 489 visa from 10 September 2013 to 26 February 2014 and a WA subclass 010 visa from

    
    

    28 February 2014 to 23 March 2015.  The affidavit also puts into evidence the valid visa application dated 28 February 2014 filed by the applicant and the Bridging Visa Grant Notice that arose from it.

21. Essentially, counsel for the first respondent was content to rely upon the written submissions.  She made the point that the applicant had been on a bridging visa since the expiry of his visa on 26 February 2014.  It was submitted that there was no qualifying visa after

    
    

    26 February 2014 and that the decision of the Tribunal was in the circumstances the only one open to it.

22. I confess that I have a measure of sympathy for the applicant.  He has obviously been living and supporting himself in Australia for quite some years.  Had he transferred to Warburton only about a month and

    
    

    a bit earlier than he did, he would have met the criteria for a 487 visa and might well have been successful.  The fact that he had not done so, however, is, as the Tribunal correctly found, fatal to his case.

23. The Tribunal’s refusal to entertain the applicant’s application to be heard, notwithstanding that his submissions were two days late, is not one I myself would necessarily have come to.  It seems to me to be but a small delay in the scheme of things.  The difficulty with any procedural unfairness that might be thought thereby to have arisen

    
    

    is that the facts are simply not in issue.

24. Everything that the applicant has either written himself or through his representative and, indeed, the oral submissions made at Court, only

    
    

    go to show beyond any question that he simply never had any prospect of meeting the criteria that he failed to meet.  In the circumstances, the Court cannot be satisfied that the applicant has shown an arguable case for the relief claimed and, while not without sympathy with the applicant, it follows that the application must be dismissed with costs.

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

Associate: 

Date:  18 March 2016