SINGH v Minister For Immigration and Anor (No.2)

[2017] FCCA 2214

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 2214

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Temporary Work (Skilled) (subclass 457) visa – Tribunal was correct to hold that it had no jurisdiction – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.140E, 140GB, 338, 347, 411, 412, 476

Migration Regulations, reg.4.02(4), 457.223

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: GURBHEJ SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 552 of 2017

Judgment of: Judge Street

Hearing date: 12 September 2017

Date of Last Submission: 12 September 2017

Delivered at: Sydney

Delivered on: 12 September 2017

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person

Solicitors for the Respondents: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. Set aside orders 1 and 2 made earlier today in default of the applicant’s appearance.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

3. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 552 of 2017

GURBHEJ SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision made by the Administrative Appeals Tribunal (“the Tribunal”) made on 30 January 2017 holding that the Tribunal did not have jurisdiction in respect of a review application of the Department's decision to refuse the application for the grant of a Temporary Work (Skilled) (subclass 457) visa.

2. The applicant is a citizen of India and on 5 December 2016 a delegate refused the grant of a Temporary Work (Skilled) (subclass 457) visa on the basis that he had been nominated for the position of gardener by his sponsor. The delegate found on the documents and information the applicant provided, that the criteria for the grant of the Temporary Work (Skilled) (subclass 457) visa were not met by the applicant.

3. The delegate identified that a visa cannot be granted unless the applicant meets the relevant legal requirements specified relevantly, in reg.457.223(4)(a) of the Migration Regulations 1994 (“the Regulations”) on the date of the making of the decision.

4. The delegate identified that on 20 October 2016 a decision was made by the Department to refuse the nomination application lodged by the primary applicant's prospective employer.

5. The delegate found that as the applicant's primary business activity is not subject to an approved business nomination, the applicant failed to meet the criteria under reg.457.223(4)(a) of the Regulations. The delegate found that the requirements of reg.457.223(4)(a) of the Regulations had not been met and accordingly refused the grant of the visa.

The Tribunal’s decision

1. The applicant applied for review on 13 December 2016. The Tribunal wrote to the applicant on 3 January 2017 inviting the applicant to comment on the validity of the application for review. The letter explained to the applicant that the application was not valid because at the time the review application was lodged the applicant was not identified in a nomination under s.140GB of the Act that was approved or pending. The letter noted there was no pending application for review before the Tribunal of either a decision not to approve the sponsor under s.140E of the Act or a decision not to approve the nomination under s.140GB of the Act.

2. The applicant was given an opportunity to respond. The applicant requested an extension of time for the purpose of responding. The Tribunal referred to the applicant's response and statement and other documents provided on 25 January and 27 January 2017. The Tribunal made express reference to the applicant's complaint of negligence by his agent in failing to pursue an appeal against the decision of the Tribunal. The Tribunal noted that no information was provided which identified that the nominator had taken any steps to file an application for review of that decision, even if the application was filed out of time.

3. The Tribunal identified the requirements of determining whether an application for review is properly made under s.347 or s.412 of the Act. The Tribunal identified the requirements in s.338 and s.411 of the Act and reg.4.02(4) of the Regulations.

4. The Tribunal correctly identified that any alleged negligence by the agent was not determinative of whether or not the Tribunal had jurisdiction to entertain the review application. The Tribunal found that it does not have a discretion to find it has jurisdiction if the criteria is not met. The Tribunal found that the sponsorship of the applicant had been refused by the Department at the time of application for review the decision to refuse the grant of the visa to the applicant and that, accordingly, there is no right of review and that the applicant failed to meet the criteria under s.338(2)(d) of the Act. The Tribunal found that there was no reviewable decision and it followed that the review application was not properly made and that the Tribunal did not have jurisdiction.

Before this Court

1. On 4 May 2017, a Registrar of the Court made orders fixing the matter for a show cause hearing today. The applicant initially failed to appear, and the Court made orders in default of the applicant's appearance, which have now been set aside. The Court has proceeded with the hearing of a show cause application by the first respondent under r.44.12 of the Federal Circuit Court Rules 2001. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether the applicant had an arguable case of alleged jurisdictional error. The Court explained that the legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the applicant had a reasonable argument that the Tribunal's decision was unlawful or unfair the matter would be fixed for hearing on another occasion. The Court explained that if not satisfied the applicant had a reasonable argument that the Tribunal's decision was unlawful or unfair, the application would be dismissed with costs.

4. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Adjournment application raised from the bar table

1. From the bar table the applicant made an application for adjournment.  The applicant said that he had seen a lawyer last week and that the lawyer had told him it was too late. The applicant maintained that there was lots of evidence that he had in relation to his job that he wished to adduce. These proceedings were commenced on 23 February. No earlier notice of an adjournment application was given to the first respondent. The adjournment is opposed by the first respondent.  Nothing said by the applicant from the bar table identified any utility in granting an adjournment, nor is the Court of the view that if the applicant was able to obtain legal representation he has not had ample opportunity to do so to date and has had ample opportunity to put on material. The Court is not satisfied that an adjournment is warranted in the interest of the administration of justice. 

Applicant’s submissions from the bar table

1. From the bar table the applicant maintained that he was in a position of the Court not entertaining his application because of the negligence of his agent. That was a matter expressly referred to by the Tribunal and the Tribunal was correct to identify that it had no discretion in determining whether or not the jurisdictional criteria were satisfied in respect of a valid review application. There is no evidence to suggest any fraud on the Tribunal. The Tribunal was correct to hold that it had no jurisdiction in the present case. 

Consideration

1. The grounds on the application are as follows:

   1. Tribunal member did not allowed to submit more testimony and made jurisdictional omission and also did not properly consider the witness presented to AAT-MRT;

   2. Tribunal member errored by not properly considering the procedural fundamentals and allowed an opinion from Independent Protection Assessment Reviewer thus an error made by the AAT-MRT;

   3. Tribunal member did giver a chance to present witness and a fair hearing manner;

   4. Tribunal member did not attended the case and material produced before and after;

   5. The AAT-MRT made jurisdictional error in denying the application for subclass 457 Temporary Work (Skilled) visa in failing to consider all the facts and the law related to the student visa claims

   6. AAT-MRT failed to accept witness statements and telephonic interview, Tribunal did not consider the current state of current state of uncertain visa outcome for self, partner & parent's & other family members; AAT - MRT failed to acknowledge the fact that obligations under criteria and did not accepted my claims in fair manner

   7. AAT-MRT failed to acknowledge the fact that AAT-MRT obligations and accepted my claims in fair manner to re-instead my visa status and visa grant

2. The grounds erroneously assume that the Tribunal was required to give the applicant a hearing in circumstances where the Tribunal had identified an issue as to the validity of the application for review at the outset. The applicant was given an opportunity to respond to that issue, and the Tribunal complied with its obligations of procedural fairness in determining whether or not it had jurisdiction. The Tribunal was correct to hold that it had no jurisdiction. None of the grounds identified establish any arguable case of jurisdictional error. 

3. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. Nothing said by the applicant identified any arguable case of jurisdictional error. As the application fails to disclose any arguable case of jurisdictional error, I am satisfied that this is an appropriate matter in which to exercise the Court's powers under r.44.12 of the Federal Circuit Court Rules 2001. 

4. Accordingly, the application is dismissed under rule 44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 October 2017