SINGH v Minister for Immigration

[2020] FCCA 1090

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1090

Catchwords:
MIGRATION – Application for temporary business visa – no approved nomination – failure to satisfy criteria – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Schedule 2, cl. 457

Cases cited:

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

First Applicant: HARWINDER SINGH

Second Applicant: JASWINDER KAUR

Third Applicant: HARJASVEER SINGH CHEEMA

Fourth Applicant: SARVEER KAUR CHEEMA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 981 of 2019

Judgment of: Judge Egan

Hearing date: 29 April 2020

Date of Last Submission: 29 April 2020

Delivered at: Brisbane

Delivered on: 29 April 2020

REPRESENTATION

Applicants: In Person

Solicitors for the First Respondent: Ms Milutinovic of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 15 November 2019 be dismissed.

3. The First and Second Applicants pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 981 of 2019

HARWINDER SINGH

First Applicant

JASWINDER KAUR

Second Applicant

HARJASVEER SINGH CHEEMA

Third Applicant

SARVEER KAUR CHEEMA

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants filed an originating application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 15 November 2019.

2. The decision of the Tribunal was to refuse to grant to the applicants’ temporary business entry (class UC) visas.

3. The applicants had applied for the relevant visas on 14 March 2017. The criteria for the grant of a subclass 457 visa, which was the relevant visa here, was set out in cl. 457 of Schedule 2 of the Migration Regulations1994 (Cth) (‘the Regulations’)

4. Clause 457.1 – 457.223(4)(a) of Schedule 2 of the Regulations provided as follows:

   “457.1—Interpretation

   Note 1: For AUD, labour agreement, ownership interest and standard business sponsor, see regulation 1.03.

   Note 2: There are no interpretation provisions specific to this Part.

   457.2—Primary criteria

   Note: The primary criteria must be satisfied by at least one applicant. Other applicants who are members of the family unit of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.

   457.21—Criteria to be satisfied at time of application

   457.211

   If the applicant is in Australia at the time of application:

   (a)  the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

   (b)  if the applicant does not hold a substantive visa at the time of application:

   (i)  the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

   (ii)  the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

   Note: Special purpose visa is defined in subsection 5(1) of the Act.

   457.22—Criteria to be satisfied at time of decision

   457.221

   If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.

   457.221A

   If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:

   (a)  the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or

   (b)  if the applicant does not hold a substantive visa at the time of the decision on the application:

   (i)  the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and

   (ii)  the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

   Note: Special purpose visa is defined in subsection 5(1) of the Act.

   457.223

   (1)  The applicant meets the requirements of subclause (2) or (4).

   Labour agreements

   (2)  The applicant meets the requirements of this subclause if:

   (a)  the occupation specified in the application is the subject of a labour agreement; and

   (b)  a nomination of an occupation in relation to the applicant:

   (i)  has been approved under section 140GB of the Act; and

   (ii)  has not ceased to have effect under regulation 2.75; and

   (c)  the applicant is nominated by a party to the labour agreement; and

   (d)  if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation—the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; and

   (e)  the Minister is satisfied that the requirements of the labour agreement have been met in relation to the application; and

   (f)  either:

   (i)  there is no adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement; or

   (ii)  it is reasonable to disregard any adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement.

   Standard business sponsorship

   (4)  The applicant meets the requirements of this subclause if:

   (a)  each of the following applies:

   (i)  a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)  the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)  the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)  the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect; and

   (ba)  either:

   (i)  the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)  each of the following applies:

   (A)  the applicant is employed to work in the nominated occupation;

   (B)  if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)  if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and”

5. Clause 457.223(4)(a)(i) was a criteria which had to be met.  It provided that for the grant of a visa there must be an approved nomination.  At the hearing before the court today, the applicants have acknowledged that there was no approved nomination, at the relevant time, so as to support their application for the visa.

6. The Tribunal, on 17 June 2019, found that it did not have jurisdiction to hear the sponsor nominated merits review application, in respect of the position the subject of nomination, in respect of the applicants.  That was because the nominating business had been de-registered on 8 April 2019. 

7. At paragraph [13] of its reasons, the Tribunal found as follows:

   “[13] After discussing same at hearing, the Tribunal notes it is a requirement for the grant of the Subclass 457 visa that the applicant is the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of the applicant's file indicated he was not the subject of an approved nomination by a standard business sponsor, and that he was not the subject of a pending nomination by a standard business sponsor. Further, that a new nomination application for approval, related to his Subclass 457 visa, could no longer be made. Without an approved nomination, the applicant does not meet an essential criterion for the grant of the visa. Therefore, the decision under review must be affirmed.”

8. This Court agrees with the reasons for the decision of the Tribunal.  It was an essential precondition for the grant of a visa to the applicants that there was an approved nomination.  If there was no approved nomination, then no visa could consequently be granted.

9. It was noted also at [14] of its reasons, that the Tribunal had considered the provisions of clause 457.321 of Schedule 2 to the Regulations. It was found that because no family member had been granted a visa after having satisfied the primary criteria, no visa could be granted to the other family members.

10. During the course of submissions made to the Court by each of the first and second respondents, reference was made by them to their having received poor advice as to how their visa application should be managed by a migration agent.  They complained that any fault in relation to the absence of an approved nomination was the fault of the migration agent, and that they should not be punished as a consequence.

11. The giving of poor advice, be it negligent or fraudulent, by migration agents, has been dealt with in a number of reported cases.  In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at paragraph 53, the High Court was there dealing with a case where the alleged fraud of a migration agent was claimed to have vitiated a decision of a Tribunal. It was said, at paragraph 53:

    “53. The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.”

    (footnotes omitted)

12. This Court is not permitted to have regard to the giving of bad or negligent advice to the applicants when considering their application for review.  It is clear that the applicants have not met the threshold criteria for the granting to them of a visa.  In those circumstances, the application for review is without merit.

13. No jurisdictional error has been demonstrated on the part of the Tribunal.

14. The application for review is dismissed.

15. The Court will hear the parties as to costs.

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

Date: 8 May 2020