Singh v Minister for Immigration

[2015] FCCA 2373

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2373

Catchwords:
MIGRATION – Migration Review Tribunal – Class UC Subclass 457 visa – procedural fairness – whether the Tribunal was obliged to adjourn the matter for the applicant to obtain legal representation – bias – whether the Tribunal had properly served documents on the applicant – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Show cause hearing – proceedings dismissed.

Legislation:

Federal Circuit Court Rules 2001, rr.44.11, 44.12

Migration Act 1958 (Cth), s.476

Minister for Immigration v Lee & Ors [2014] FCCA 2881

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1060 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Sydney

Delivered on: 28 May 2015

REPRESENTATION

Solicitors for the Applicant: Ms I. Djoneski

Solicitors for the Respondents: Ms N Johnson
Mills Oakley Lawyers

ORDERS

1. The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1060 of 2015

MANDEEP 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 30 March 2015 holding that it did not have jurisdiction in respect of an application for review of a decision refusing to grant the applicant a Class UC Subclass 457 visa.

2. The matter was returnable before the Court at 9:30am and the First Court Date provides:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The solicitor initially appeared for the applicants and in response to the first respondent’s application for a show cause hearing, the solicitor for the applicants applied for leave to withdraw from the proceedings and leave was granted. The first respondent moved under r.44.11 for an immediate show cause hearing on the basis that the application failed to disclose a basis for an arguable case.

4. The application identifies the following grounds:

   1. MRT and DIBP have failed to consider my case in accordance with Natural Justice and Procedural Fairness

   2. MRT has failed to serve the documents in proper manner

   3. MRT and DIBP have failed to do correspondences incorrectly and insufficiently

   4. THE TRIBUNAL DENIED THE APPLICANT THE RIGHT TO REPRESENTATION TO ASSIST THE APPLICANT IN PRESENTING HIS CASE PROPERLY AND ADEQUATELY

   5. The applicant was not aware of the way in which the Migration Review Tribunal processes applications nor was he in a position to properly present the facts on which he relied

   6. The Tribunal failed to take into consideration some important procedural errors made by the department in assessing the applicant application

   7. In this respect, the Tribunal should have accepted the Applicant case and allowed the Applicant with such representation in order to properly presented the Applicant’s case but hence was denied by the Tribunal.

   8. THE TRIBUNAL DENIED THE APPLICANT PROCEDURAL FAIRNESS AND NATURAL JUSTICE IN NOT GIVING HIM THE OPPORTUNITY TO PROPERLY CONSIDER HIM LEGAL POSITION, GIVEN HIM LIMITATION IN THE LEGAL SYSTEM

   9. THE TRIBUNAL FAILED TO DETERMINE THE APPLICANT'S APPLICATION FOR REVIEW ACCORDING TO THE LAW, IN TAKING A VIEW OF THE MIGRATION ACT AND REGULATIONS. THAT WAS UNNECCESSARIL Y LIMITED AND CONSTRITED AND WHICH FITTED THE TRIBUNAL MEMBER'S PERSONAL VIEW RATHER TUAN A COMPREHENSIVE VIEW OF THE RELEVANT LAW

   10. The Tribunal Member therefore regarded the Applicants as being no different to any other Applicant who lodged an invalid application and this constituted a failure to afford the Applicant procedural fairness.

   11. The Tribunal Member therefore failed to afford the Applicant procedural fairness by taking a personally subjective view of the Applicant's actual circumstances

   12. Had the Tribunal given proper consideration to the facts, instead on merely noting and dismissing it without proper consideration, the Tribunal should have come to a different view of the Applicant's case for review

5. This is a matter in which the Tribunal held that it had no jurisdiction effectively because of the following findings:

   3. ‘Sponsored’ includes being identified in a nomination under s.140GB of the Act. It is a criterion for the grant of a Subclass 457 visa in the standard business sponsorship stream that a nomination of an occupation in relation to the applicant made by a standard business sponsor has been approved under s.140GB of the Act and the approval has not ceased as provided for by r.2.75 of the Regulations.

   4. Following the decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, for the purposes of s.338(2)(d)(i) there must have been, at the time the review application was made, a nomination of an occupation approved and in force. For the purposes of s.338(2)(d)(ii), there must have been at the relevant time, a review of a sponsorship refusal decision pending before the Tribunal. The Tribunal does not have jurisdiction where an application for review of a decision to refuse a nomination was pending at the time the review application was lodged, as s.338(2)(d)(ii) only refers to review of a decision not to approve the sponsor.

   5. In this case, the applicant was being nominated for a position by Shukar Pty Ltd, an approved standard business sponsor. On 5 September 2013, the delegate refused the nomination application lodged by Shukar Pty Ltd. The applicant lodged an application for review of the visa refusal on 5 November 2013.

   …

   8. The Tribunal has considered the applicant’s response but cannot accept jurisdiction on the basis that he abided by his previous student visa requirements and genuinely wishes to continue study. As stated in Lee, an approved sponsor alone is insufficient for the purposes of s.338(2)(d)(i). The Tribunal finds that at the time the review application was lodged on 1 March 2013, there was no nomination of an occupation relating to the applicant that was approved under s.140GB of the Act and was in force. The nomination by Shukar had been refused. At that time, there was also no application for review of a decision not to approve the sponsor, which was pending before the Tribunal, for the purpose of s.338(2)(d)(ii).

   9. The Tribunal therefore finds that the requirements of s.338(2)(d) are not met.

   10. Accordingly, the Tribunal finds that the decision to refuse the applicant a Subclass 457 visa is not an MRT reviewable decision in accordance with s.338(2)(d) and r.4.02(1A). As the delegate’s decision is not MRT-reviewable in these circumstances it follows that the application for review was not properly made under s.347 for review of an MRT-reviewable decision for the purposes of s.348 and the Tribunal does not have jurisdiction in this matter.

6. The Tribunal was correct to follow the decision of Minister for Immigration v Lee & Ors [2014] FCCA 2881 and there is no error in the finding on the Tribunal that it did not have jurisdiction.

7. Prior to the termination by the Tribunal that it had no jurisdiction it wrote to the applicant on 3 February 2015 inviting comments on whether a valid application for review had been made.  In that letter the Tribunal specifically identified the dispositive issue as follows:

   A preliminary view has been formed that your application for review was not valid, and that the Tribunal does not have jurisdiction to conduct a review.

   Following the recent decision of the Federal Circuit Court in MIBP v Lee [2014] FCCA 2881, the Tribunal is of the view that for your application to be valid there must have been, at the time that application was made, either a nomination of an occupation approved and in force, or an application for review of a decision to refuse the nomination pending before the Tribunal.

   I am of the view that your application was not valid, because it appears that at the relevant time there was no nomination of an occupation that was approved under s. 140GB of the Migration Act 1958 and in force. There was also no application for review of a decision to refuse a nomination pending before the Tribunal at the relevant time. However, this is a matter which must be determined by a Tribunal member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 17 February 2015. Your application, with any comments you make, will then be referred to a Tribunal member to make a decision on your application. If the Tribunal member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

8. That notification was sent to the applicant’s authorised address and was responded to by the applicant but not in a way that identified any substantive answer for the want of jurisdiction.  It was in those circumstances the Tribunal was entitled to proceed to determine the review and there was no duty on the Tribunal to adjourn the matter and there was no denial of procedural fairness by the Tribunal deciding to determine the review.  The grounds of the application assert a general denial of natural justice and procedural fairness and have no content and are without substance and do not disclose an arguable jurisdictional error. 

9. The assertion of a failure to properly serve documents is without substance and contradicted by the clear response of the applicant to the notification of the dispositive issue.  The proposition that the Tribunal denied the applicant a right to representation is without substance.  The applicant was entitled to such legal or other representation as the applicant was able to afford and it was not an obligation of the Tribunal to provide representation.  There is no substance in the allegation of a denial of representation by the Tribunal and it does not disclose any jurisdictional error.

10. The assertion that the applicant was not aware of the dispositive issue is contradicted by the letter of 3 February 2015 and is also contradicted by the applicant’s response to that letter which was clearly received.  The generalised assertion that there was a failure to take into account relevant matters identifies no relevant matter and has no content, and fails to disclose any arguable jurisdictional error. The suggestion that the applicant should have been allowed representation amounts to an assertion that the Tribunal should have adjourned the matter. On the material before the Tribunal it was open to the Tribunal to decide to proceed to the determination and it cannot be said in that regard that the decide to proceed lacks an evident and intelligible justification. The decision not to grant an adjournment was proportional in the circumstances and reveals no jurisdictional error. 

11. The repetition of denial of procedural fairness and natural justice and lack of opportunity to obtain legal representation is without substance and fails to disclose any arguable jurisdictional error.  The proposition that the Tribunal failed to determine the matter according to law is without substance and fails to disclose any arguable jurisdictional error.

12. The assertion that the matter was one in which the Tribunal proceeded to engage in some personal view is in substance an allegation of bias by reason of the adverse determination. The allegation of bias is not proved.  I am satisfied that the adverse determination in respect of jurisdiction by reason of which a fair minded observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the determination of the dispositive issue on its merits.  Ground 9 fails to disclose any jurisdictional error.

13. Ground 10 appears to be an acknowledgment of the lodging of an invalid application and is again a generalised assertion of a failure to provide procedural fairness without any content and fails to disclose any arguable jurisdictional error.

14. Ground 11 is in substance a repetition of the allegations of bias under Ground 9 which are without substance and fails to disclose any arguable jurisdictional error.

15. Ground 12 is an impermissible challenge to the adverse findings of fact and does not identify any arguable jurisdictional error. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  2 September 2015