Singh v Minister for Immigration

[2015] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 431

Catchwords:
MIGRATION – Application for a review of a decision by the Migration Review Tribunal – Applicant unable to meet requirements of cl.857.221 of Sch.2 of the Migration Regulations 1994 (Cth) because employer nomination not approved by the Department of Immigration and Border Protection – no jurisdictional error by the Migration Review Tribunal – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Sch.2, cl.857.221

Applicant: HARPREET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 872 of 2014

Judgment of: Judge Whelan

Hearing date: 16 February 2015

Date of Last Submission: 16 February 2015

Delivered at: Melbourne

Delivered on: 16 February 2015

REPRESENTATION

Counsel for the Applicant: Applicant appeared in person

Counsel for the First Respondent: Ms Ngo

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. Pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, the application lodged on 9 May 2014 is dismissed.

2. The Applicant is to pay the First Respondent’s costs in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 872 of 2014

HARPREET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. In this matter, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the Minister to refuse to grant the Applicant an Employer Nomination (Residence) (Class BW) visa.[1]

   [1] Affidavit of Harpreet Singh filed 9 May 2014.

2. The First Respondent seeks that the application[2] be dismissed on the basis that it discloses no arguable case for the relief sought.

   [2] Application of Harpreet Singh filed on 9 May 2014.

Background

1. The Applicant is an Indian citizen who, on 27 June 2012, applied

   
   

   for the visa on the basis of his employment as a cook with

   
   

   AAJ India Proprietary Limited (“AAJ India”) trading as

   
   

   ‘Souvlaki On Charles, Launceston’. The position had been

   
   

   nominated as an approved appointment under reg.5.19 of the

   
   Migration Regulations

   1994 (Cth) (“the Regulations”) by AAJ India.[3]

   [3] First Respondent’s Show Cause Submissions filed 30 January 2015, p.2 at para.5.

2. On 1 October 2013, a delegate of the Minister refused to grant the visa because the Applicant did not meet the requirements of cl.857.221 of Sch.2 of the Regulations. That was because the appointment had not been approved by the Department of Immigration and Border Protection (“the Department”).

3. The Applicant made an application for review of the delegate’s decision to the Tribunal on 18 October 2013. The Applicant was invited to appear before the Tribunal to give evidence and present arguments. He was advised that, at the hearing, the Tribunal would discuss the issues arising under the review,

   
   

   being whether:

   ·The Applicant had been nominated by an employer for an appointment in the business of that employer in accordance with the requirements of reg.5.19 of the Regulations; and

   ·The appointment had been approved and was still available to him.[4]

   [4] Ibid, p.2 at paras.6-8.

4. The Applicant was requested to provide all of the documents he wished to rely on to establish that he met the criteria for the visa.

   
   

   The Applicant appeared before the Tribunal on 9 April 2014 to give evidence and present argument. On the same day, the Tribunal affirmed the delegate’s decision and, on 9 May 2014, the Applicant made this application for review.

The application for review

1. The application for review contains some nine statements and they are as follows.

   1.  Tribunal member did not even understand my situation, there is no procedural fairness

   2.  That was misunderstanding in between immigration department and employer in regarding nomination

   3.  When I have submitted all documents with my application there was no response, suddenly after couple of months they have refused visa, this manner is conspicuous, led to possibility of Admiration error immigration end.

   4.  Eventually my case has been refused.

   5.  Just I have been bounced in between DIBP and MRT for year and Tribunal opens my file refused

   6.  I wasn’t even given some chance to make some submissions in regarding my situation how I wasn’t able to get all evidence from employer about the Nomination.

   7.  I have felt this is unfair and not legitimate to me as I have lost the future in Australia as well as time and money.

   8.  I hope Federal circuit court has got Jurisdiction in this matter.

   9.  Or else Apex court might have Jurisdiction in my matter.[5]

   [5] Application of Harpreet Singh filed on 9 May 2014, at p.3.

The Tribunal’s decision

1. In its decision, the Tribunal noted that the issue was whether the appointment of the Applicant had been approved for the purpose of cl.857.221 of Sch.2 of the Regulations. It noted that that clause required that, at the time of the decision, the appointment in the business of the employer for which the Applicant had been nominated had been approved and not withdrawn. The appointment must continue to satisfy the criteria for approval in reg.5.19 of the Regulations and be still available to the Applicant.[6]

   [6] First Respondent’s Show Cause Submissions filed 30 January 2015, p.3 at para.12.

2. The Tribunal noted that the decision to refuse the visa to the Applicant was made by the delegate on the basis that a nomination by AAJ India, which related to the Applicant, had been refused by the Department on

   
   

   20 September 2013. That meant that, at the time of the Department’s decision, the Applicant did not meet the criteria in cl.857.221 of Sch.2 of the Regulations.[7]

   [7] Ibid, p.3 at para.13.

3. The Tribunal noted it had accessed the Department’s database which confirmed there was no record of the approval of the nomination made by AAJ India. There was also no information on the records of the Tribunal that AAJ India had ever sought a review of the Department’s decision to refuse the nomination application made by AAJ India.[8]

   [8] First Respondent’s Show Cause Submissions filed 30 January 2015, p.3 at para.14.

4. The Tribunal noted that, at the hearing, the Applicant said that the owner of AAJ India, Mr HARI SINGH (“Mr Singh”), had asked him to go to Tasmania to work in his business. However after that, Mr Singh did not do what he was supposed to do. The Applicant said that

   
   

   Mr Singh was overseas from March to August 2013 which is why he did not apply to the Tribunal for a review of the Department’s decision to refuse the business nomination.

5. The Tribunal found that, as the nomination by AAJ India had not been approved, the Applicant could not meet the requirements of cl.857.221 of Sch.2 of the Regulations. As the Applicant did not meet that criteria, the decision under review had to be affirmed.[9]

   [9] Ibid, p.3 at para.16.

The First Respondent’s submissions

1. The First Respondent in these proceedings submitted that the Applicant had not articulated any proper grounds for review and/or had not provided particulars of the grounds. The First Respondent further submitted that the Tribunal had complied with the statutory requirements in relation to procedural fairness, in that the Applicant:

   ·Was invited to a hearing;

   ·Was given notice of the issues arising in relation to the decision under review;

   ·Was invited to provide any documents he wished to rely on to establish that he met the criteria for the visa; and

   ·Attended the Tribunal to give evidence and present argument. 

   In the circumstances, the First Respondent submits that there was no breach of the Tribunal’s hearing obligations.[10]

   [10] First Respondent’s Show Cause Submissions filed 30 January 2015, p.4 at para.19.

Conclusions

1. The essence of the Applicant’s grounds are that he was denied procedural fairness because of a misunderstanding between the Department and his employer sponsor. Further, the Applicant submits that he was not given an opportunity to make submissions regarding his situation with respect to how he was unable to obtain evidence about the nomination.

2. The Applicant appears to misconstrue the role of the Tribunal in conducting a review of the delegate’s decision. The Tribunal is bound to apply the relevant regulations. In this case, the Regulations required, as a condition of granting a visa, that the Applicant had been nominated by an employer for an appointment and that the appointment:

   ·Had been approved;

   ·Had not been withdrawn;

   ·Continued to satisfy the criteria for approval; and

   ·Was still available to the Applicant. 

   In this case, the Department had refused to approve the appointment. The Applicant, therefore, could not meet the requirements of the Regulations.

3. The Applicant was informed by letter what the issue was on

   
   

   13 March 2014 and was invited to appear before the Tribunal.

   
   

   The Applicant told the Tribunal it was not his fault that the employer had not sought a review of the delegate’s decision not to approve the appointment. There was no lack of procedural fairness on the part of the Tribunal. The grounds otherwise raise no arguable case for the relief sought. 

4. On that basis, I am satisfied that the application in this matter should be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:

Date: 26 February 2015