Singh v Minister for Immigration

[2019] FCCA 3144

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3144

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Regional Sponsored Migration Scheme (subclass 187) visa – whether the Tribunal complied with its statutory obligations and obligations of procedural fairness – whether the Tribunal took into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359C, 360, 363A, 476
Migration Regulations 1994 (Cth), sch.2, cl.187.233

Applicant: HARJEET SINGH

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 210 of 2019

Judgment of: Judge Street

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Sydney

Delivered on: 1 November 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms G Ellis
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 1 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 210 of 2019

HARJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 May 2019 affirming the decision of a delegate of the first respondent not to grant the applicant a Regional Sponsored Migration Scheme (subclass 187) visa.

2. The applicant is a citizen of India. On 2 August 2016, the applicant applied for a Regional Sponsored Migration Scheme (subclass 187) visa. The criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa is set out in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

3. In the present case, the applicant was seeking a Regional Sponsored Migration Scheme (subclass 187) visa in the direct entry stream to work in the position of a cook. On 10 October 2018, the nomination relating to the applicant lodged by Danbar Indian Nepalese Restaurant (Fremantle) Pty Ltd was refused by a delegate. As the nomination had been refused, the delegate found that the applicant did not meet cl 187.233(3) of the Regulations. The delegate refused to grant the applicant a Regional Sponsored Migration Scheme (subclass 187) visa because the applicant did not meet the requirements of cl 187.223 of the Regulations.

4. On 14 November 2018, the applicant applied for review of the delegate’s decision. By letter dated 4 March 2019, the Tribunal invited the applicant to attend a hearing on 17 April 2019 to give evidence and present arguments. The Tribunal also identified that it was unable to make a decision favourable to the applicant on the information before it. By letter dated 20 March 2019, the Tribunal invited the applicant to a rescheduled hearing on 17 April 2019. By email dated 26 March 2019, the applicant’s migration agent conveyed to the Tribunal that the applicant had instructed him to inform the Tribunal that he had no further evidence to provide and that the Tribunal can make a decision on the basis of the evidence already provided.

5. On 29 April 2019, the Tribunal affirmed the delegate’s decision not to approve the nomination relating to the applicant and made by the applicant’s nominating employer. By letter dated 2 May 2019, the Tribunal invited the applicant to comment on information relating to that decision. The Tribunal identified that this information was relevant to the requirement of cl 187.223(3) of the Regulations which requires that the applicant’s nomination be approved by the Minister. The Tribunal explained to the applicant that, if the Tribunal relies on this information, it may find that the nomination in relation to the applicant has not been approved and, consequently, the decision under review will be affirmed. The applicant was invited to respond by 16 May 2019. The applicant did not respond.

6. The Tribunal in its reasons identified the background to the applicant’s review application. The Tribunal also identified the sending of an invitation to comment to the applicant on 2 May 2019. The Tribunal also identified the communication from a migration agent referred to above.

7. The Tribunal identified that, within the prescribed period, the applicant did not provide comments and that no extension was requested. The Tribunal found that, in these circumstances, s 359C of the Act had application. The Tribunal also identified that, pursuant to s 360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The Tribunal also identified that the effect of these provisions and s 363A of the Act is that the applicant had no entitlement to a hearing.

8. The Tribunal, having considered the information before it which included the information in respect of the affirming of the delegate’s decision not to approve the nomination in relation to the applicant made by the applicant’s nominating employer being the Darbar Indian Nepalese Restaurant (Fremantle) Pty Ltd, found that the applicant did not satisfy cl 187.223(3) of the Regulations and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 5 June 2019. On 10 July 2019, a Registrar of the Court made orders providing the applicant with an opportunity to put on an amended application, affidavit evidence and submissions.

2. The applicant has put on submissions. Those submissions identify the applicant’s circumstances, his dependence on his employer in relation to the Regional Sponsored Migration Scheme (subclass 187) visa, the stress in the applicant’s life, the circumstances of the applicant’s past eleven years in Australia, the contribution the applicant has made in that time, the applicant’s wellbeing and the dependence of others upon him, and the applicant’s endeavours to find a job in his financial situation.

3. The applicant’s submissions, in essence, invite the Court to determine the matter on compassionate or discretionary grounds. This Court has no power to determine proceedings filed in this Court on compassionate or discretionary grounds. While the Court may sympathise with the applicant in relation to his predicament and the circumstances he has faced, including his employer’s lack of willingness to further pursue the refusal of the approval of the nomination, these are not circumstances which give rise to any relevant error by the Tribunal in exceeding its statutory powers in its conduct of the review. Nothing in the applicant’s written submissions identifies any jurisdictional error.

4. The grounds in the application are as follows:

   1. I was born on 26/07/1988

   2. I am currently on Bridging Visa A

   3. I Harjeet Singh has applied for a RSMS (RN 187) on 02 August 2016. The visa application was refused by Department of Home Affairs on 14th November 2018 and affirmed by Administrative Appeals Tribunal on 22nd May 2019

5. The grounds in the applicant’s application effectively identify matters of history. None of the three grounds set out in the application articulate any relevant error by the Tribunal. No jurisdictional error is made out by the grounds in the application.

6. From the bar table, the applicant identified his circumstances of hardship and asked the Court to exercise mercy in relation to his predicament. As the Court explained to the applicant, it has no power to decide the matter on grounds of mercy or compassionate or discretionary grounds. The Court’s powers and jurisdiction are confined. The Court can only grant relief if it finds that the Tribunal has exceeded its statutory powers or has failed to comply with its obligations of procedural fairness in the conduct of a review.

7. On the face of the material before the Court, the Tribunal complied with its statutory powers and, in circumstances where the applicant had been invited to comment and failed to do so, the Tribunal was correct in holding that the applicant was not then entitled to a hearing.

8. It is further apparent, in the circumstances of the present case, that the applicant’s representative had already informed the Tribunal that the applicant did not wish to proceed with the hearing and asked the Tribunal to determine the matter on the material before the Tribunal. In circumstances where the Tribunal had already sent an invitation letter explaining to the applicant that it could not make a favourable decision on the material currently before it, the applicant’s application before the Tribunal was doomed to failure.

9. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review and complied with its statutory obligations. In circumstances where the applicant did not respond to the invitation to comment, the Tribunal was correct to conclude the applicant was no longer entitled to appear before the Tribunal pursuant to s 360(3) of the Act. Given a delegate’s refusal to approve the nomination relating to the application which was affirmed by the Tribunal on 29 April 2019, the Tribunal was correct to conclude that the applicant did not meet the requirements of cl 187.223(3) of the Regulations. In these circumstances, it was open to the Tribunal to affirm the decision under review.

10. This is not a case where the Tribunal had any discretionary or compassionate grounds upon which it could grant a visa. The requirements in respect of the existence of an approved nomination was a mandatory criteria which the applicant did not meet. The applicant was not in a position where the applicant had sought to satisfy any other criteria in respect of the Regional Sponsored Migration Scheme (subclass 187) visa and the direct stream entry. In these circumstances, nothing said by the applicant from the bar table identifies any jurisdictional error.

11. In the applicant’s affidavit, the applicant asserted that the Tribunal had made a jurisdictional error in refusing the application by overlooking the applicant’s circumstances. As considered above, the applicant’s circumstances were not capable of meeting this mandatory criteria. Accordingly, nothing in paragraph 4 of the applicant’s affidavit identifies any jurisdictional error.

12. In these circumstances, as the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  17 January 2020