Singh v Minister for Immigration

[2014] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1206

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal affirming decision not to grant applicant an Employer Nomination (Residence) (Class BW) visa – Application referred for immediate show cause hearing pursuant to r.44.11 of the Federal Circuit Court Rules 2001 (Cth) – Tribunal bound to make decision due to failure to satisfy cl.857.221 of Schedule 2 to the Migration Regulations 1994 (Cth) – Application dismissed pursuant to r.44.12(1)(a).

Legislation:

Migration Regulations 1994 (Cth), r.5.19(4)

Applicant: AMNEET PAL SINGH

First Respondent: MINISTER FOR IMMGIRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 977 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 10 June 2014

Delivered at: Sydney

Delivered on: 11 June 2014

REPRESENTATION

The Applicant: The Applicant appeared in person.

Solicitors for the First Respondent: Ms Hillary of DLA Piper

The Second Respondent: The Second Respondent filed a submitting notice of appearance.

ORDERS

1. The application filed on 9 April 2014 is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs of and incidental to the application fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 977 of 2014

AMNEET PAL SINGH

Applicant

And

MINISTER FOR IMMGIRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 9 April 2014 by the applicant, Amneet Pal Singh, seeking review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”), made by Member J. Ciantar on 25 March 2014, affirming the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

2. It is convenient to reproduce the reasons of the Tribunal in its Decision Record as background for these proceedings.  The Tribunal stated:

   Application For Review

   1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 January 2013 to refuse to grant the applicant an Employer Nomination (Residence) (Class BW) visa under s.65 of the Migration Act 1958 (the Act).

   2. The applicant applied for the visa on 20 October 2011 on the basis of proposed employment in the position of Cook. The position had been nominated for approval as an approved appointment under r.5.19 of the Migration Regulations 1994 (the Regulations).

   3. At the time of application, Class BW contained two subclasses: Subclass 856 (Employer Nomination Scheme) and 857 (Regional Sponsored Migration Scheme). As the nominated position for which the visa is sought is the subject of an employer nomination that was made on the basis of meeting r.5.19(4) of the Regulations, the relevant subclass in the present case is Subclass 857. The criteria for this visa subclass are set out in Part 857 of Schedule 2 to Regulations. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

   4. The delegate refused to grant the visa because the applicant did not meet cl.857.221 of Schedule 2 to the Regulations because the nomination lodged by the nominator, Hospitality Inspiration Group, had been refused. The applicant provided the Tribunal with a copy of the delegate’s decision.

   5.     On 18 February 2014 the Tribunal invited the applicant to appear before the Tribunal on 17 March 2014.  The hearing invitation also indicated that at the hearing the issues arising would be discussed and these include: whether the applicant has been nominated by an employer for an appointment in the business of that employer in accordance with r.5.19(2) or (4), which is a time of application requirement; and whether the appointment has been approved and is still available to the applicant and whether the approved appointment will provide the employment referred to in the relevant employer nomination, which is a time of decision requirement.

   6.     On 13 March 2014 the applicant responded to the Tribunal’s hearing invitation and he also provided a statement.  The applicant wrote that he has completed a Diploma of Hospitality in Australia and he wants to become a cook.  His employer had promised to employ him but later breached the agreement, which was not due to any fault of the applicant.  The applicant submits that the nomination was lodged as required by cl.857.213(a).  However, there was a delay in processing the application and the business then closed down and then the nomination was refused.  The applicant further writes that he worked in the restaurant from 20 October 2012 and he was not paid his proper entitlements after the restaurant closed down.  He tried to sure the employer but the employer has left and is in hiding.  Due to his experience, the applicant has found other employment as a cook and he intends to apply offshore once labour market testing is finished.

   7.     The applicant appeared before the Tribunal on 17 March 2014 to give evidence and present arguments.

   8.     The Tribunal put to the applicant that he has told the Tribunal that he does not have an approved nomination but this is a requirement for the grant of the visa.  The applicant stated that he has done nothing wrong but his former place of employment has closed down.  He would like the Tribunal to allow him more time to talk to his former employer.  The Tribunal put to the applicant that in the submission he sent to the Tribunal ,he wrote that his former employer has closed down.  The applicant said that they probably have closed.  The Tribunal  explained that any new nomination application would need to be made by the same employer in respect of the same position.  However, as the applicant has said that the employer has closed down and he is now looking for a different employer, the Tribunal is not prepared to allow the applicant more time.

   9.     For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   10.    The issue in the present case is whether the applicant meets the criterion in cl.857.221(a), which requires, at the time of the decision, that the relevant nominated appointment has been approved.

   Approval of appointment

   11. Clause 857.221 requires that at the time of decision, the appointment in the business of the employer for which the applicant has been nominated, has been approved and not been withdrawn. The appointment must continue to satisfy the criteria in r.5.19(4) of the Regulations, and still be available to the applicant.

   12.    As indicated above, the applicant made the visa application on the basis that he had been nominated by Hospitality Inspiration Group for appointment in the nominated position of cook with that employer.  The Tribunal is satisfied that this is the appointment mentioned in cl.857.213(a).

   13.    At the time of the Tribunal’s decision, the appointment mentioned in cl.857.213(a) must still be available to the applicant.  This means the nominated position in the business of the nominating employer, Hospitality Inspiration Group that was the subject of the employer nomination made at the time of the application for the visa, and based on which the applicant could satisfy relevant time of application criteria.

   14.    However, the Department’s decision record which the applicant provided to the Tribunal indicates that the nomination lodged by Hospitality Inspiration Group has been refused.  At the time of the decision there is no information before the Tribunal to indicate that the relevant appointment has been approved, or that any appointment has been approved in respect of the applicant under r.5.19.

   15.    As there is no evidence of a relevant approved appointment, the Tribunal is not satisfied that the applicant meets cl.857.221(a).  Therefore, cl.857.221 is not met.

   16.    The applicant has only sought to satisfy the criteria for a Subclass 857 visa.  No claims have been made in respect of the other visa in the class.  As the applicant has not met the criteria for a Subclass 857 visa, the decision under review must be affirmed.

   DECISION

   17.    The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.

Current Proceedings

1. The applicant filed an application seeking review of the Tribunal’s decision on 9 April 2014. The application pleads the following grounds:

   1.  Tribunal member did not even understand my situation, there was 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 months they have refused visa, this manner is conspicuous, led to possibility of [administration] 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 [C]ircuit [C]ourt has got jurisdiction in this matter.

   9.  Or else Apex [C]ourt might have jurisdiction in my matter.

   I note there are nine pleaded grounds in the application, however, on a fair reading these appear to be a single statement that where the sentences have been separated by a line break.  I intend to approach the applicant’s claims as being:

   a)First, a lack of procedural fairness on the part of the Tribunal (including that the applicant was not allowed to make any submissions in respect of his case);

   b)Second, that the Department of Immigration and Border Protection misunderstood the Employer Nomination in respect of the applicant’s Visa application; and

   c)Third, there may have been an error on the Tribunal’s or the delegate’s parts as the application took a very long time and was refused;

2. The solicitors for the Minister filed a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the proceedings. The volume of material provided is identified as the Court Book (“CB”).

Consideration

1. Regulation 5.19(4) of the Migration Regulations 1994 (Cth) (the “Regulations”) stated (at the time of the applicant’s application for a visa on 19 October 2011):

   Approval of nominated positions (employer nomination)

   …

   (4)   An employer nomination meets the requirements of this subregulation if:

   (a)    the employer nomination is made by an employer in respect of a need for a paid employee in a business that is:

   (i)    actively and lawfully operating in regional Australia; and

   (ii)    operated by that employer; and

   (b)    either:

   (i)    the appointment:

   (A)     will provide the employee with full‑time employment; and

   (B)     will be for at least 2 years; and

   (C)     will be located in regional Australia; or

   (ii)    if the employer nomination relates to a person designated under regulation 2.07AO — the appointment:

   (A)     will provide the employee with either continuing full‑time employment or seasonal employment that will continue; and

   (B)     is in accordance with the employment the employee has undertaken in regional Australia over the previous 12 months; and

   (C)     will be located in regional Australia; and

   (c)    unless the appointment is exceptional, the work to be performed requires the appointment of a person who has a diploma (within the meaning of subregulation 2.26A (6)) or higher qualification; and

   (d)    the employee is to be employed or engaged in Australia in accordance with the standards for wages and working conditions provided for under relevant Australian legislation and awards; and

   (e)    a body specified by Gazette Notice for this paragraph certifies that the employer nomination meets the requirements of paragraphs (a), (b) and (c); and

   (f)    the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

   (i)    the employer; or

   (ii)    any officer of any of the entities that constitute the employer; or

   (iii)    any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

   (g)    the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and

   (h)    the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

   (i)    the Commonwealth; and

   (ii)    each State or Territory in which the employer operates the business and has employees of that business.

2. Clause 857.221 of Schedule 2 to the Regulations as they were at the time of the visa application states:

   Criteria to be satisfied at time of decision

   857.221      The appointment mentioned in paragraph 857.213 (a):

   (a)     has been approved; and

   (b)     has not been withdrawn; and

   (c)     continues to satisfy the criteria for approval; and

   (d)     is still available to the applicant.

3. Clause 857.213(a) of Schedule 2 to the Regulations states:

   857.213      Each of the following is satisfied:

   (a)     the applicant has been nominated by an employer, in accordance with subregulation 5.19 (4), for an appointment in the business of that employer;

4. The Tribunal found in respect of the applicant at [14] of the Decision Record that the appointment relied upon by the applicant in support of his visa application had not been approved and, as a result, he did not satisfy cl.857.221(a) of Schedule 2 to the Regulations. Appearing at CB 36-41 is a decision record of a delegate of the Minister made on 14 November 2011 refusing the nomination of the applicant under the Regional Sponsored Migration Scheme. I note that the nomination application had been made by Hospitality Inspiration Group and not the applicant. No application for review by the Tribunal was made by or on behalf of Hospitality Inspiration Group and the decision remained extant.

5. On 9 January 2013 a delegate of the Minister refused the applicant’s application for an Employer Nomination (Residence) (Class BW) visa (CB 52-56) due to the failure of the applicant to satisfy cl.857.221, specifically subclause (a). It is clear on the evidence in the Court Book this was still the case at the time of the delegate’s decision and the delegate was bound to make this decision under the cl.857.221.

6. The applicant then applied to the Tribunal for review of the delegate’s decision on 11 January 2013. The Tribunal invited the applicant on 18 February 2014 (CB 76-77) to appear at a hearing before it on 17 March 2014. The applicant elected to appear at the hearing and provided written submissions (CB 80-84). It should be noted that these submissions do not in any depth address the non-existence of an approved application pursuant to cl.857.221(a) in respect of the applicant.

7. On 25 March 2014 the Tribunal affirmed the delegate’s decision under review. This decision has been reproduced above at [2]. A fair reading of the Decision Record presents no error and the Tribunal was obliged to affirm the decision under review as the applicant could not satisfy all of the requirements of cl.857.221 of the Migration Regulations. There is no discretion provided by the Migration Act 1958 (Cth) or Migration Regulations in respect of this visa class and the Tribunal was bound to refuse the applicant’s visa application. I note that the failure to satisfy cl.857.221(a) appears to have been a failure on the part of the applicant’s employer at the time of the visa application, Hospitality Inspiration Group, and not caused by an omission on the part of the applicant. This is unfortunate for the applicant who has now been placed in an unfortunate situation, however, there is no relief available to the applicant in the proceedings he has commenced in this Court.

8. I note the applicants pleaded grounds of review above (reproduced at [3]) and the oral submissions he made at the show cause hearing.  In respect of the first ground of review (above at [3](a)) the applicant claims there has been a lack of procedural fairness, including not being allowed to make submissions.  The applicant was invited to a hearing to make oral submissions and also filed written submissions in support of his claim, however, any submission was futile as there was no discretion on the part of the Tribunal to allow the grant of a visa without an approved nomination.

9. In respect of the second ground of review (above at [3](b)), this ground is also ultimately futile and cannot be sustained.  The Tribunal understood the type of visa being applied for by the applicant and the relevant criteria that had to be satisfied for the grant of that visa, and considered these criteria against the applicant’s circumstances, but was ultimately bound to affirm the decision under review.

10. The third ground of review (above at [3](c)) purports to raise complaints in respect of the delays experienced by the applicant between his lodging the visa application, the first refusal by the Minister’s delegate, then the delay between the filing of the application for review in the Tribunal and the hearing before it. Unfortunately, no aspect of this ground can be sustained. Had a decision been made in respect of the applicant’s visa application at any time in the period between 19 October 2011 and 25 March 2014, such a decision would also have had to have been a refusal of the grant of the visa for the same reason as that of the actual decision, namely a failure to satisfy the criterion in cl.857.221(a).

11. Consequently, the application has no reasonable prospect of success and should be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) with costs awarded to the Minister. I further note that the applicant’s unfortunate predicament seems to be a result of failures on the part of his previous employer and not him, however, there is no relief available to him in these proceedings.

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

Associate: 

Date:      11 June 2014