Singh v Minister for Immigration

[2018] FCCA 3306

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3306

Catchwords:
MIGRATION – Temporary business entry (class UC) visa – no error by tribunal – none of the grounds were meritorious – application dismissed.

Legislation:

Migration Act1958, ss.359, 359A, 359C, 360, 363A, 140GB

Migration Regulations 1994, sch 2, sub-cls 457.223, 457.321

Cases cited:

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

Singh v Minister for Immigration and Border Protection (2017) 251 FCR 110

First Applicant: MANPREET SINGH

Second Applicant: RUPINDER KAUR

Third Applicant: HARNOOR HARNOOR

Fourth Applicant: VIRAJ SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 360 of 2016

Judgment of: His Honour Judge Wilson

Hearing dates: 10 September and 9 November 2018

Date of Last Submission: 9 November 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

First Applicant: In person

Solicitors for the First Applicant: None

Second Applicant: No appearance

Solicitors for the Second Applicant: None

Third Applicant: No appearance

Solicitors for the Third Applicant: None

Fourth Applicant: No appearance

Solicitors for the Fourth Applicant: None

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: DLA Piper Australia

ORDERS

1. The application filed on 26 February 2016 is dismissed.

2. The first and second applicants pay the first respondent’s costs of the proceeding fixed in the sum of $6 129.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 360 of 2016

MANPREET SINGH

First Applicant

RUPINDER KAUR

Second Applicant

HARNOOR HARNOOR

Third Applicant

VIRAJ SINGH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this court on 26 February 2016, the first applicant sought judicial review of a decision made by the Administrative Appeals Tribunal on 3 February 2016 by which the tribunal affirmed the decision of the minister’s delegate not to grant the applicants a temporary business entry (class UC) visa.

2. The first two applicants are husband and wife.  The third and fourth applicants are their daughters.  By orders made on 10 September 2018 I appointed the first applicant as the litigation guardian of the third and fourth applicants. 

3. On 27 February 2014 the applicants applied for the relevant visa. They needed to comply with sub-cl 457.223(4) of sch 2 of the Migration Regulations 1994 (“regulations”).  The delegate refused the first applicant’s nomination application lodged by the primary applicant’s prospective employer, Curry King Group Pty Ltd. 

4. On 21 April 2014 Curry King Group Pty Ltd lodged a new nomination application which the delegate refused on 13 January 2015.  As the primary applicant was not the subject of an approved nomination, the delegate was not persuaded that cl 457.223(4)(a) had been satisfied with the consequence that the delegate refused to grant the primary applicant the 457 visa he sought.

5. On 2 February 2015 the applicant applied to the Migration Review Tribunal, now the Administrative Appeals Tribunal, for review of the delegate’s decision. 

6. On 3 February 2016 the tribunal affirmed the decision not to grant the applicants the temporary business entry (class UC) visas they sought.

7. The question on the hearing of this application for judicial review was whether the tribunal fell into jurisdictional error in its decision in this case.

Synopsis

1. In my view the tribunal did not fall into jurisdictional error with the consequence that this application for judicial review must be dismissed and the applicants must pay the minister’s costs.

Relevant factual setting

1. On 15 January 2016 the tribunal wrote to the applicants pursuant to s 359(2) and under s 359A of Migration Act 1958 (“Act”) inviting them to respond to or comment in writing on information that the tribunal considered would be the reason or part of the reason for affirming the decision under review. The applicants failed to provide information or comments within the prescribed time and no extension of time was sought. The tribunal found that s 359C applied and that pursuant to s 360(3) of the Act the applicants were not entitled to appear before it. The tribunal expressed its satisfaction with its statutory obligations and decided to proceed to make its decision without taking further steps to obtain information or comment.

2. The tribunal posed the question for its resolution as being whether the primary visa applicant met the requirements of cl 457.223(4)(a). The tribunal found that there was no evidence before it at the time of its decision that there was a current nomination of an occupation in relation to the first applicant that had been approved under s 140GB of the Act. The tribunal found that the applicant did not satisfy cl 457.223(4)(a)(i) and that the requirements for the standard business sponsor stream were not met with the consequence that the tribunal affirmed the decision under review.

In this court

1. The applicants were not legally represented in this proceeding.  On the hearing before me on 9 November 2018 the first applicant appeared in person and on occasions required the assistance of an interpreter.  He spoke some English although his command of it was reasonably basic.  I mean no disrespect to him in saying that.  However, it may have explained his unfamiliarity with the processes of the migration jurisdiction in this court.

2. On behalf of all applicants the first applicant provided an expansive and at times discursive “ground” for his application for judicial review.  The factual and legal basis on which his application for judicial review was based was difficult to distil.  It is useful to record in terms of the grounds of his application for judicial review.  They are reproduced immediately below (with errors in the original) –

   I “MANPREET SINGH” want to dispute over the conduct of DIBP and the Administrative Appeals Tribunal in regards to my subclass 457 visa refusal and the refusal of my 457 visa review application. My 457 visa application was first refused by the immigration department and then later on, the AAT department affirmed the DIBP decision not to grant me a 457 visa. I do not agree with the decisions from both departments. I want to challenge the decisions given by both departments in the federal circuit court.

   Background:

   I lodged my subclass 457 visa application (TRN: EGO55H61VW} on 27^th February 2014 with DIBP. The application was lodged as it was accompanied by a prerequisite nomination application (TRN: EGO54RTU6K).

   On 13^th January 2015, the nomination application was refused as the standard business sponsorship of the business “CURRY KING GROUP PTY LTD” was cancelled.

   Consequently, on 21^st January 2015, my subclass 457 visa application was refused as well as there was no approved nomination at the time of decision on my 457 visa application.

   On 24^th January 2015, my employer informed me that he has made a review application in the AAT (Melbourne) for the refusal of the nomination application.

   Subsequently, I lodged a review application with AAT department for the refusal of my subclass 457 visa application.

   On 15^th January 2016, I was invited by the AAT department to comment in writing to provide information in regards to my subclass 457 visa refusal application. I was asked to provide comments for the reason that AAT already affirmed the department's decision to refuse the nomination of “CURRY KING GROUP PTY LTD” on the same date (15/01/2016)

   As there was no approved nomination for "CURRY KING GROUP PTY LTD", I didn't provide any comments to AAT department.

   On 3^rd February 2016, I have got this decision from the AAT department confirming the department's decision not to grant me a subclass 457 visa.

   Claims and Evidence:

   My concerns are that I am unfairly treated in regards to my subclass 457 visa review application.

   I lodged my subclass 457 visa application in February 2014. My visa was refused in January 2015. In my refusal letter, I was given the review rights for my application. That is the reason that I lodged my review application in AAT department.

   During this time, I was in regular contact of my employer who was in the process of lodging another 457 visa sponsorship and nomination applications. I was regularly advised by my employer that immigration department has made a mistake in cancelling the business SBS sponsorship and in refusing the nomination. I was just following the directions of my employer and his registered migration agent.

   Now, I have been advised by my employer that he is not going to re lodge further 457 visa sponsorship and nomination applications. I fully understand that my employer does have his rights to do so but this situation has ruined my life and I am standing in the middle of nowhere currently. I believe that I should have been given one more chance to find another employer and to continue with my 457 visa application.

   My purpose for this judicial review application is that the AAT department has failed to provide me another chance to apply for a 457 visa with different employer. I am already a victim of misguidance and fraud from my first employer. I should have been given a special consideration on my review application in the light of this fraud. I am being punished for someone else's mistakes.

   I request the “FEDERAL CIRCUIT COURT” to exercise its powers and to reverse the decision of the Administrative appeals tribunal.

3. As is my usual practice with litigants in person in migration cases, I invited the applicant to tell me in his own words what he said the tribunal did wrong in this case, he having been affirmed to tell the truth.  In essence, he relied on two propositions.  The first was that he said he was misguided by his agent and his employer.  Second, he said he did not receive any notice in the nature of an invitation to appear before the tribunal.  In the passages below I have addressed those points. 

4. It will be recalled that on 15 January 2016 the tribunal wrote to the applicants pursuant to s 359 and pursuant to s 359A of the Act inviting them to respond to or comment upon information that the AAT considered would be the reason or part of the reason for affirming the decision under review. The applicants did not provide information or comments within the prescribed time stipulated in that letter and did not seek any extension of time. That had certain consequences under the Act. The operation of the sections that became applicable were the subject of consideration by two decisions of Full Court of the Federal Court of Australia, the first in Hasran v Minister for Immigration and Citizenship[1] and the second in Singh v Minister for Immigration and Border Protection.[2]  A useful starting point is the explanation given by the Full Court in Hasran between paragraphs 27 to 29 of the Full Court’s reasons.  There, the Full Court held as follows –

   27Here, the appellant’s failure to respond to the Tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A.

   28This was because the appellant was invited by the Tribunal’s letter under s 359A to comment or respond to the information stated in the Tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the Tribunal.

   29The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the Tribunal did not have power to permit the appellant to appear at an oral hearing.

   [1] (2010) 183 FCR 413

   [2] (2017) 251 FCR 110

5. Importantly, the consequence of the application of all those sections was to the effect that the tribunal did not have power to permit the applicant to appear at an oral hearing.

6. Similar observations were made in Singh in the joint judgment of North, Bromberg and Bromwich JJ. Commencing at paragraph 54, the Full Court held as follows –

   54If, before a hearing invitation has issued:

   (1)the Tribunal forms the view that a review applicant should succeed, that triggers s 360(2)(a); or

   (2)the review applicant consents to the matter being decided without him or her appearing, that triggers s 360(2)(b); or

   (3)the review applicant has not complied with a s 359A invitation to comment on or respond to information within time, s 359C(2) applies, which triggers s 360(2)(c), no hearing invitation is required to be issued.

   55Additionally, for any of the situations or events in s 360(2) listed in the preceding paragraph, s 360(3) operates to provide expressly that the review applicant is thereby not entitled to appear at a hearing. That then triggers s 363A so that the Tribunal clearly does not have power to permit the review applicant to appear at a hearing.

   56If, after a hearing invitation has issued:

   (1)a Tribunal member forms the view that a review applicant should succeed, that triggers s 360(3) via the application of s 360(2)(a);

   (2)the review applicant consents to the matter being decided without him or her appearing, that triggers s 360(3) via the application of s 360(2)(b); or

   (3)the review applicant has not complied with an invitation to comment upon or respond to information, s 359C(2) applies, which triggers s 360(3) via the application of s 360(2)(c), there is no longer an entitlement to appear at a hearing and by virtue of s 363A the Tribunal does not have power to permit the visa applicant to attend a hearing.

   57The same interpretation must inevitably apply to s 359 requests made to a review applicant to provide information and the operation of s 359C(1) in conjunction with ss 360 and 363A.

   58Ground 1 must therefore fail.

7. The tribunal in this case addressed the letter that it wrote to the applicants on 15 January 2016 between paragraphs 6 and 10 of its reasons.  It seemed to me that the tribunal correctly applied the relevant legislative regime and the decision in Hasran in reaching the conclusion that the combined operation of s 359C and s 360(3) was that the applicants were not entitled to appear before the tribunal. Further, the tribunal correctly applied s 363A of the Act to the effect that if the applicants have no entitlement to a hearing the tribunal has no power to permit him or her to appear.

8. It seemed to me the tribunal was correct in that conclusion.

9. It then became relevant to consider whether the tribunal correctly applied the relevant criteria for an assessment of the applicant's entitlement to the visa that they sought. In this case, the relevant clause was 457.223(4) of sch 2 to the regulations. In applying that clause, the tribunal found in paragraph 16 of its reasons that there was no evidence before the tribunal at the time of its decision that there was a current nomination of an occupation in relation to the applicant that had been approved under s 140GB of the Act with the consequence that the tribunal correctly found the applicant did not satisfy cl 457.223(4)(a)(i).

10. In those circumstances it seemed to me that the tribunal was correct in its construction of cl 457.223 in so far as the first applicant was concerned.  The secondary applicants being the second, third and fourth applicants were members of a family unit of the first applicant.  However, the first applicant did not satisfy the criteria for the subclass 457 visa and therefore, the secondary applicant did not satisfy cl 457.321.  It followed, and the tribunal found, that the decision by the delegate not to grant the applicants the temporary business entry (class UC) visa that they sought was properly affirmed. 

11. Let me now turn to the submissions advanced by the first applicant before me.

12. First, the first applicant told me he did not physically receive the tribunal’s request for information provided on 15 January 2016.  That document was sent to the applicants’ appointed agent at an email address nominated by the first applicant, as recorded at pages 130 and 131 of the court book.  The solicitor for the minister correctly contended that the email sent by the tribunal on 15 January 2016 was sent to the applicants’ agent as given by the applicants’ appointed representative and that it was proper for the tribunal to communicate with the applicants’ agent at the address given by the applicants’ agent.  I agree.  Whether the applicants’ agent sent the communication to the first applicant himself was neither here nor there.  The tribunal discharged its statutory responsibilities by communicating by email to the applicants at the address given for communication between the tribunal and the applicants, namely at the email address of the applicants’ representative.  While I have some sympathy in there being what the first applicant said was a breakdown of communication between his agent and himself, that was no answer to the minister’s contentions that the document was properly given when given by the tribunal to the applicants’ representative at the applicants’ representative’s nominated email address.

13. It was then relevant to consider the contention by the first applicant that he was “misguided” by his agent and employer.  He used that word.  Whether or not the first applicant has some common law claim against his agent employer for breach of some form of duty is not a matter relevant to me on the assessment of the applicants’ claim for judicial review on the grounds of jurisdictional error.

14. None of the contentions advanced by the applicants had merit.  In my view this proceeding should be dismissed and the first and second applicants should pay the minister’s costs and I so order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Associate: 

Date:       16 November 2018