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

The application filed on 26 February 2016 is dismissed.
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

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.
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.
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.
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.
On 2 February 2015 the applicant applied to the Migration Review Tribunal,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 3306
Decision Date: 16 November 2018

CaseChat Overview and Summary

The applicant, Manpreet Singh, sought judicial review of decisions made by the Department of Immigration and Border Protection (DIBP) and the Administrative Appeals Tribunal (AAT) concerning his subclass 457 temporary business entry visa application. The DIBP initially refused his visa application because the prerequisite nomination application by "CURRY KING GROUP PTY LTD" was refused due to the cancellation of the business's standard business sponsorship. The AAT subsequently affirmed the DIBP's decision.

The primary legal issues before the Federal Circuit Court were whether the AAT erred in affirming the refusal of the subclass 457 visa application and whether the applicant was unfairly treated or should have been afforded an opportunity to secure a new employer and sponsorship. The applicant contended that he was a victim of misguidance and fraud by his former employer and that the AAT failed to provide him with a chance to apply for a visa with a different employer, arguing he was being punished for the mistakes of others.

His Honour Judge Wilson found that the applicant's grounds for judicial review were difficult to distil but ultimately determined that none of the grounds were meritorious. The court noted that the AAT had affirmed the refusal of the nomination application, which was a prerequisite for the visa. As there was no approved nomination at the time of the visa decision, the applicant's visa application was correctly refused. The court did not find any error in the AAT's decision-making process, nor did it identify any legal basis for requiring the AAT to provide the applicant with an opportunity to find a new employer.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 27th February 2014 with DIBP. The application was lodged as it was accompanied by a prerequisite nomination application (TRN: EGO54RTU6K).On 13th January 2015, the nomination application was refused as the standard business sponsorship of the business “CURRY KING GROUP PTY LTD” was cancelled.Consequently, on 21st 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 24th 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 15th 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 3rd 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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