Singh v Minister for Immigration

[2020] FCCA 580

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 580

Catchwords:
MIGRATION – Regional Employer Nomination (Class RN) (subclass 187) visa – decision of the Administrative Appeals Tribunal – where the applicant had no approved nomination – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.360, 476

Migration Regulations 1994 (Cth), cl.187.233

Cases cited:

Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80

Applicant: SUKHWINDER SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 319 of 2019

Judgment of: Judge Kendall

Hearing date: 13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Perth

Delivered on: 17 March 2020

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Ms S Anicic

Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 319 of 2019

SUKHWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 18 July 2019.

2. The Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Regional Employer Nomination (Class RN) (subclass 187) visa (the “visa”).

3. This proceeding is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.

4. The Court had before it the applicant’s judicial review application filed 15 August 2019, correspondence confirming service of the Minister’s written submissions (marked as Exhibit 1), a Court Book (“CB”) numbering 93 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 28 February 2020.

5. The Court confirmed with the applicant that he had received and had reviewed the Court Book and the Minister’s submissions.

Background

1. The applicant is a citizen of India (CB 2). He arrived in Australia on 31 March 2012 as the holder of a student visa (CB 69).

2. On 20 February 2017, the applicant applied for the visa (CB 1-13). The applicant was nominated by M K Bansal Pty Ltd (“M K Bansal”) for the position of a Café or Restaurant Manager.

3. On 4 April 2017, the Minister’s Department wrote to the applicant inviting him to comment on information that would result in his visa application being refused. Specifically, the applicant was advised that the M K Bansal’s nomination had been refused and, as such, the applicant’s only options were to withdraw his application or have his visa refused (CB 46-49).

4. No response was received.

5. On 13 June 2017, the delegate refused to grant the applicant the visa on the basis that M K Bansal’s nomination had been refused and, as such, the applicant did not meet the requirements of cl.187.233(3) of the Migration Regulations 1994 (Cth) (the “Regulations”).

6. On 30 June 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 62-63).

7. On 3 July 2019, the Tribunal wrote to the applicant inviting him to comment on and respond to the following information (CB 78-79):

   The application for approval of the nominated position made by MK Bansal Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

8. The applicant’s migration agent indicated that he had no further information to provide and asked that the Tribunal “make the decision on the information provided” (CB 80).

9. On 18 July 2019, the Tribunal affirmed the decision not to grant the applicant the visa.

Tribunal’s Decision

1. The Tribunal’s decision is 5 pages long and spans 23 paragraphs.

2. At [1]-[7], the Tribunal summarised the background to the application before it.

3. At [9]-[14], the Tribunal then stated as follows:

   9. On 3 March 2016, the applicant’s sponsoring employer, MK Bansal Pty Ltd applied for approval for a nomination for the position of Café or Restaurant Manager ANZSCO 141111. Mr Sukhwinder Singh is the nominee for the position. On 4 April 2017 the Department refused the application on the basis the nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations. In a separate decision, the Department refused Mr Sukhwinder Singh’s subclass 187 visa application because MK Bansal Pty Ltd’s nomination was not approved.

   10. MK Bansal Pty Ltd and Mr Sukhwinder Singh applied to the Tribunal to review the Department’s decisions.

   11. On 3 July 2019 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by MK Bansal Pty Ltd for the position of Café or Restaurant Manager, (ANZSCO 141111).

   12. On 3 July 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by MK Bansal Pty Ltd.

   13. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 187.233(3) of the Migration Regulations.

   14. The applicant was advised that if he cannot satisfy cl.187.233 the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing the visa.

4. The Tribunal then noted that the applicant’s migration agent had advised the Tribunal that the applicant had no further information to provide.  The Tribunal noted that in those circumstances, it had determined it would not take any further steps to obtain any information (at [15]-[17]).

5. After summarising the relevant criterion (at [18]-[19]), the Tribunal found as follows:

   20. The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 187.233(3).

   21. Therefore, cl.187.233 is not met.

6. The Tribunal affirmed the delegate’s decision to refuse the visa.

Proceedings in this Court

1. The applicant’s judicial review application contains two grounds of review as follows:

   1. The applicant, Mr Sukhwinder Singh continued working in the same capacity even after selling of business, getting name changes, management changes of his Sponsored business, still hold intentions to continue work in the same capacity and/or similar capacity with same dedication and passion for service industry.

   2. As per the refusal, “I have considered the Business Structure in the Business Plan that states “The business is owned and will be run by Baljinder Singh, trading as the La Tropicana Cafe.” According to the business plan, La Tropicana Cafe is a labor of love for employees and brothers Baljinder Singh and Sukhwinder Singh. Baljinder Singh manages administration, stock and finance and Sukhwinder Singh is in charge of the kitchen, menus, and front of the house. The business plan also shows the owner, and his brother will work full-time in the business and the business will hire a part-time cook. Also shown are positions of a full-time cafe all rounder and a part-time vacant cafe all-rounder.” States my dedication and commitment to the job irrespective of other variables involved.

2. The applicant was given an opportunity to file any amended application, affidavit evidence and outline of submissions. No further materials were provided.

3. Noting that the applicant was unrepresented, the Court allowed the applicant an opportunity to elaborate on, and further particularise, his grounds of review. This is the standard procedure in this Court: Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].

4. To assist the applicant, the Court explained to him that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision.  The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap.  For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:

   a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;

   b)where the decision-maker ignores relevant material: Craig at 198;

   c)where the decision-maker relies on irrelevant material: Craig at 198;

   d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];

   e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and

   f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].

5. The Court also explained to the applicant that the Court cannot review the merits of the Tribunal’s decision or grant him the visa he seeks.  Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

6. Against this background, the Court invited the applicant to explain what he thought the Tribunal “did wrong”.  Unfortunately, as is not uncommon in matters of this sort given the complexity of the legislation in question, the applicant’s submissions were directed toward the delegate’s decision and, more specifically, the delegate’s decision in relation to the nomination decision – a decision that is not relevant to the proceedings currently before this Court.

7. The applicant appeared in Court with another gentlemen who explained that he was the previous director of M K Bansal (that is, he was the sponsor relevant to the nomination decision). He stated that, for a number of reasons, he was unable to properly attend to having the nomination approved but this was through no fault of the applicant.

8. The Court and the Minister made efforts to explain to the applicant that the nomination decision was a separate decision to the decision the subject of review in this Court.  It was explained that the nomination decision had not been appealed to this Court and the Court could not review that decision in determining whether the Tribunal erred when it refused the applicant his visa. 

9. When the Court asked the applicant to specifically address the decision the subject of this review, he indicated that his migration agent had not acted properly and did not advise him about the invitation to comment or that he could attend a hearing.

10. The Court will consider these submissions below.

Consideration

1. In ground 1, the applicant appears to be suggesting that he still has “passion” and “dedication” and wishes to work in the relevant industry. The Court does not doubt him in this regard.  Unfortunately, these statements do not point to jurisdictional error on the part of the Tribunal.

2. Ground 2 appears to be referring to the refusal of M K Bansal’s nomination and not the Tribunal’s decision as relevant to this case. The only decision before this Court is the decision of the Tribunal in relation to the applicant’s visa. In any event, ground 2 appears to simply invite merits review of the nomination decision – as opposed to identifying any error.

3. Clause 187.233 of the Regulations required that M K Bansal’s nomination be approved. This nomination was not approved. As such, and as correctly noted by the Tribunal, the applicant could not satisfy cl.187.233(3).

4. The applicant was required to satisfy each of the criterion for the grant of the visa. There is no discretion to waive this criteria. The Tribunal’s decision was the only decision that was open to be made.

5. The applicant’s oral submissions were, unfortunately, misplaced. The Court cannot consider the nomination decision.  The Court does not doubt that the applicant has done “everything right”.  Unfortunately, this is not relevant when determining whether there is jurisdictional error on the part of the Tribunal.

6. To the extent that the applicant referred to not having been invited to the hearing before the Tribunal, the Court notes that the applicant’s migration agent advised the Tribunal to make a decision on the information provided (CB 80). This amounts to the applicant consenting to the review being determined without an oral hearing pursuant to s.360(2)(b). In those circumstances, the Tribunal was entitled to determine the matter without inviting the applicant to a hearing.

7. The applicant seemed to indicate to this Court that his migration agent acted improperly. In effect, he suggested that his migration agent did not pass on relevant documents and information to the Tribunal and did not discuss attending a hearing with the applicant.

8. There is nothing before the Court to suggest that the applicant’s migration agent acted fraudulently: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.  At its highest, the agent may have been negligent or simply misunderstood the applicant’s instructions.

9. The Court explained to the applicant that any concerns he has in relation to the conduct of his migration agent should be raised with the Office of the Migration Agents Registration Authority.

10. Finally, the Court agrees with the Minister that even if there were an error in the Tribunal’s decision (including in circumstances where the migration agent had incorrectly advised that the applicant did not want to attend the hearing), it would be futile for the Court to remit the matter to the Tribunal. M K Bansal’s nomination was refused.  That is not disputed.  This means that the applicant cannot now meet the relevant criterion: Singh v Minister for Immigration & Border Protection (2017) 253 FCR 267.

11. The Court has otherwise reviewed the Tribunal’s decision and can identify no error.

Conclusion

1. The Court is sympathetic to concerns raised by the applicant. Unfortunately, as a result of the way this particular visa scheme operates, the Court cannot assist him.  His visa application was dependent upon MK Bansal’s nomination – a nomination that had been rejected.

2. The application for judicial review contains no error.

3. The application, accordingly, is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Kendall

Associate: 

Date:  17 March 2020