Singh v Minister for Immigration and Border Protection & Anor

[2015] HCATrans 69

[2015] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D2 of 2014

B e t w e e n -

AMNEET PAL SINGH

Plaintiff

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Defendant

A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO DARWIN

ON WEDNESDAY, 18 MARCH 2015, AT 11.00 AM

Copyright in the High Court of Australia

MR A.P. SINGH appeared in person.

MR R.C. KNOWLES:   Your Honour, if it pleases the Court, I appear for the first defendant in this matter.  (instructed by DLA Piper Australia)

HIS HONOUR:   There is a submitting appearance for the second defendant.

MR KNOWLES:   Yes.

HIS HONOUR:   Yes.  Now, Mr Singh, the Minister has filed some written submissions; have you seen those submissions?

MR SINGH:   Yes, I have.

HIS HONOUR:   As you see in those submissions, the Minister says that I should dismiss your case.  What I will do this morning is, first, I will hear what the Minister’s counsel has to say and then it will be your turn to tell me what you want to tell me in answer to the Minister.  Do you understand that?

MR SINGH:   Yes.

HIS HONOUR:   So I will first hear from Mr Knowles, and then I will hear from you.  Very well.  Yes, Mr Knowles.

MR KNOWLES: Thank you, your Honour. As your Honour will have seen from the first defendant’s outline of submissions, the Minister submits that this proceeding has no reasonable prospect of success and, on that basis, ought to be dismissed, pursuant to subsection 25A(2) of the Judiciary Act 1903. There are other alternative bases upon which the Minister submits that all or part of the proceeding ought to be dismissed. For instance, insofar as the plaintiff seeks judicial review of the decisions of the Minister’s delegate or of the Migration Review Tribunal, those applications are out of time, and in the Minister’s submission, on the basis of there not being a satisfactory explanation for the delay, and also there being no reasonable prospect of success in the underlying proceeding, no extension should be granted.

Otherwise, there is a further submission made by the Minister as to this matter being, in effect, an abuse of process where matters have previously been litigated, which are the subject of this matter, in other courts, namely, the Federal Circuit Court and the Federal Court.  But if I can focus for the purposes of today’s oral submissions at least on the first point that the Minister makes, which is the core point, and that is that the proceeding has no reasonable prospect of success and, on that basis, ought to be dismissed.

Your Honour will have seen that this is a matter which started out involving an application for an employer nomination visa made in October 2011. Now, the visa criteria for the grant of such a visa are set out in Part 857 of Schedule 2 to the Migration Regulations 1994. In that part the relevant visa criteria are set out in clauses 857.213 and 857.221, but in respect of the former clause, that requires that a person has been:

nominated by an employer . . . for an appointment in the business of that employer –

and the latter clause, that is, clause 857.221, requires that at the time of any decision in respect of the visa application the appointment “has been approved” by the Minister and “is still available to the [visa] applicant” to take up.

The Minister’s delegate refused to grant the plaintiff an employer nomination visa on 9 January 2013 on the basis that the appointment, which was the subject of the employer nomination in this case, had not been approved by the Minister and, as such, there was an inability on the part of the plaintiff to satisfy the visa criterion in clause 857.221.

HIS HONOUR:   Now, Mr Singh says that either at that time or about that time the employer with whom he intended to work had ceased to carry on business and Mr Singh says, in effect, that the employer had – I think he uses the expression “ripped him off” – he had paid him wages and had not paid him other entitlements.  Now, what, if anything, am I to make of that fact to which Mr Singh has referred more than once?

MR KNOWLES:   Yes, accepting that, for the sake of this argument, your Honour, and accepting that that is – if it is to be accepted, an unfortunate situation that has occurred for Mr Singh, regrettably it does not alter the fact of his inability to satisfy the relevant visa criteria in respect of having an employer nomination that is approved by the Minister as at the time of making the decision.

Mr Singh did not have such an employer nomination approved by the Minister as at the time of the delegate’s decision, nor did he have an employer nomination approved by the Minister ‑ whether by that employer that he claims to have ripped him off or by any other employer for that matter at the time of the Tribunal’s decision either ‑ and that was the insurmountable difficulty which Mr Singh faced in his application for a visa.  And then before the Tribunal his application for review of the decision to refuse to grant him a visa he simply was unable by reason of not having the relevant employer nomination approved by the Minister to meet the requisite visa criteria.

HIS HONOUR:   Is there any material which would show whether any nomination had been made at the time of the Tribunal decision?  I understand you to say there was no approved nomination, but is there any material which would say one way or the other whether a nomination had been made?

MR KNOWLES:   Yes, I do not believe that there was any dispute at the time of the Tribunal proceeding that there was a nomination in respect of Mr Singh, but that was by the company which we have previously referred to your Honour, being the company that ‑ ‑ ‑

HIS HONOUR:   Which had gone out of business?

MR KNOWLES:   Correct.

HIS HONOUR:   That was the only nomination that was revealed by the material?

MR KNOWLES:   That is correct, so far as I am led to believe, and I am sure if I am wrong about that Mr Singh will indicate otherwise.

HIS HONOUR:   Yes.

MR KNOWLES:   But as I have also indicated to your Honour, and your Honour has observed, there are two requirements under the relevant visa criteria.  Firstly, that there be the nomination and, secondly, that it be approved by the Minister as at the time of decision, and whether there was some other nomination, there certainly was not approval of it on the evidence before the Tribunal at the time of making its decision.  I should say ‑ ‑ ‑

HIS HONOUR:   Yes, it would just be a little awkward if there had been a nomination and no decision had been made about it, Mr Knowles.  The papers suggest that Mr Singh feels a sense of having been badly done by, by the employer, who he would say “ripped him off”; that I well understand.  But what I was just wanting to explore with you a little, as far as I can see in the papers, there is nothing that suggests that an alternative nomination had been made, and it is not just that there was not an approved nomination, there was no alternative nomination.

MR KNOWLES:   That is my understanding as well, your Honour, but I might add one further thing, and that is that subject to how the particular visa criterion is to be construed, it does fall within a part of the regulations that has a heading “Criteria as at time of application” and that would suggest – and I do not say definitively one way or another, bearing in mind previous decisions of this Court – that would at least suggest that the requirement as to having a nomination needed to be met as at the time of making the visa application.

HIS HONOUR:   I understand that sort of argument and that is a set of paths that I suspect we do not have to go down or explore, but I just wanted to bring to the surface what seemed to me to be the position, at least as far as the papers I have read show.  There was the nomination at the time of application by the employer who went out of business and the controller of which, Mr Singh says, went into hiding, but no other nomination.

MR KNOWLES:   Yes, that is my understanding as well, your Honour.

HIS HONOUR:   Yes, I understand that.  So the point then comes, as I understand it, on your side of the record to be, look, the visa application had to fail.

MR KNOWLES:   That is right, your Honour, yes.

HIS HONOUR:   Now, is it more elaborate than that?

MR KNOWLES:   No, it is not.  That is the point that was made in the written outline of submissions and, I might add, it also appears to be the point that was made by both the Federal Circuit Court and the Federal Court in other proceedings relating to judicial review of the Migration Review Tribunal’s decision.

HIS HONOUR:   A possible point of view about the proceedings in this Court would be, I assume, that they are directed to judicial review of Justice Nicholas’ decision.  Now, if they are understood in that way, I do not think I yet understand from what Mr Singh has written what he says his complaint is about the proceedings before Justice Nicholas.  Yes, he says, in effect, I have been very hardly done by and I should be given a chance to get a visa with a new nominator, but at least for the moment I do not quite understand whether there is a particular form of complaint made about Justice Nicholas’ decision or do you identify that point better than I have?

MR KNOWLES:   No, your Honour, I cannot discern anything in that regard and it is certainly submitted, just to make the position clear ‑ ‑ ‑

HIS HONOUR:   Sorry, Mr Knowles, I suspect we need to keep the microphone well in view because Mr Singh has to be able to hear.

MR KNOWLES:   Yes, I apologise for that, your Honour.

HIS HONOUR:   Perhaps if you would repeat yourself?

MR KNOWLES:   Yes, I do not discern anything in that regard either, your Honour, but I should make the position clear on the part of the Minister, and that is that the decision of his Honour Justice Nicholas does not, in the Minister’s submission, disclose any error; it applies well‑established principles about whether or not leave to appeal ought to be granted and does so without any indication of error affecting the exercise of discretion.  Certainly, in that regard, his Honour was not satisfied that there was any doubt affecting the decision the subject of the application for leave to appeal.

Just while I am on the topic, your Honour, of leave to appeal, I would seek to just quickly correct an error that appears in the written submissions.  It is not, in my submission, material in any way to the Minister’s position, or in the Minister’s submission, to how the matter ought to be dealt with.  But your Honour may have seen that in the submissions at footnote 21 it is suggested that there might have been an ability on the part of Mr Singh to apply to this Court for special leave to appeal from the order of Justice Nicholas.

HIS HONOUR:   Well, that might be a matter of some controversy at least.

MR KNOWLES: I accept, your Honour, that having regard to sections 25 and 33 of the Federal Court of Australia Act 1976 that appears to be incorrect and that is an oversight or error that falls for my responsibility.

HIS HONOUR:   I should say to you, Mr Knowles, I had proceeded on the basis that at the least there was some controversy about whether any application for special leave would be competent, but if application for special leave were to be competent it would go into the discretionary mix, that is all.

MR KNOWLES:   Yes.

HIS HONOUR:   But I think it is a point we can perhaps conveniently leave to one side.

MR KNOWLES:   That is what I would urge your Honour to do, having regard to the provisions in the Federal Court of Australia Act that I have just mentioned because it does not appear to be an option so far as the Minister would now submit, upon reflection, which was available to Mr Singh.

HIS HONOUR:   Yes.

MR KNOWLES:   But coming back, that really only goes to the ‑ ‑ ‑

HIS HONOUR:   Well, again, can I interrupt you and just make sure that I understand what the points are?  One, you say the visa had to be refused; two, you say there is nothing wrong with Justice Nicholas’ decision that would attract intervention by this Court.

MR KNOWLES:   Yes.

HIS HONOUR:   Are those the two points that you make?

MR KNOWLES:   And to the extent, even though the Federal Circuit Court is not named as a party or might otherwise somehow be the subject of some argument from Mr Singh, nor is the order of the Federal Circuit Court affected by any reviewable error either.

HIS HONOUR:   Yes.

MR KNOWLES: So that all goes, obviously, to the primary submission of the Minister in respect of there being no reasonable prospect of success which would then in turn warrant this Court, in my submission, dismissing the matter summarily pursuant to subsection 25A(2) of the Judiciary Act.

HIS HONOUR:   Yes.

MR KNOWLES:   As I say, there are ancillary submissions that are made.  I do not seek to go over those in oral submissions, they are set out in the written submissions.

HIS HONOUR:   Yes, I have those.

MR KNOWLES:   The core proposition is that there is no reasonable prospect of success for the plaintiff in this matter.

HIS HONOUR:   Yes.  Thank you, Mr Knowles.

MR KNOWLES:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Singh, you have heard – forgive me, Mr Singh, the tradition is we stand whenever the Judge is talking to you.  Forgive my insisting on old habits and old traditions.  Mr Singh, you have heard what has happened between me and counsel for the Minister.  I understand the Minister makes two points.  He says, first, because you did not have an approved nominator for an approved position the visa application had to fail and, second, the Minister says what was done in the Federal Court and in

the Federal Circuit Court was done according to law.  Now is the chance you have to tell me what you want to say in support of your application.

MR SINGH:   Like I said before, I have been badly done by the employer and the nomination was lodged but was not approved by the time of the decision.  But also when I applied an application the Immigration took way too long to get to the application and by that time the business was already closed, so I suffered.  Like I said before, I should get another chance to get a visa because I am still living in the same regional area and still working in the same occupation, which is in the shortest list of this area.

And I am working for a new employer and the nomination has already been lodged with the new employer.  And also I have just like been badly done.  And I had all those things for my side for 857 visa but the business got shut and the nomination was not approved, so I should get a chance.  That is all I have got to say.

HIS HONOUR:   Mr Singh, thank you very much.  You may sit down.

MR SINGH:   Thank you.

HIS HONOUR:   Mr Knowles, is there anything that you need to add by way of reply?

MR KNOWLES:   No, your Honour, but one minor point that I should just address that was raised by Mr Singh about there being a nomination for a new employer.  That is recent and, as I understand, it post‑dates the Tribunal and the delegate’s decision, just to be clear.

HIS HONOUR:   Yes, thank you.

On 27 November 2014, the plaintiff filed an application in this Court for an order to show cause directed to the Minister for Immigration and Border Protection and to a judge of the Federal Court of Australia.  In that application the plaintiff claimed a writ of mandamus, a writ of certiorari and, if necessary, an enlargement of time within which to seek a writ of mandamus.

In the affidavit which the plaintiff filed in support of his application for an order to show cause, the plaintiff explained that the Federal Court decision, which was a decision of Justice Nicholas, needed to be put aside and a favourable decision made in his case which would allow him to obtain an 857 visa to complete the job ready test program having regard, amongst other things, to the fact that he has competent language ability.

As appears from the exhibits to the plaintiff’s affidavit, on 9 January 2013, the then Department of Immigration and Citizenship notified the plaintiff that his application for an Employer Nomination (Residence) (Class BW) (subclass 857/856) visa which had been lodged on 20 October 2011 was refused. The stated basis for refusal was that the plaintiff did not satisfy regulation 857.221 of the Migration Regulations 1994 (Cth).

As is apparent from other documents attached to the plaintiff’s affidavit in support of his application, the nomination which he had procured to be lodged in support of his application for a visa had not been approved by the Department.

The plaintiff sought review of the refusal of his application for a visa by the Migration Review Tribunal.  By letter dated 26 March 2014, the Tribunal notified the plaintiff that the Tribunal had decided to affirm the decision not to grant the visa that he sought.  In its reasons for decision the Tribunal referred to the statement that the plaintiff had provided in response to the Tribunal’s hearing invitation.

The Tribunal said that in that statement the plaintiff had written “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 clause 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 sue 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”.

Being dissatisfied with the decision of the Migration Review Tribunal, the plaintiff applied to the Federal Circuit Court of Australia for judicial review of the decision. The Federal Circuit Court, Judge Lloyd‑Jones, concluded that the application for judicial review had no reasonable prospect of success and ordered that it be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Judge Lloyd‑Jones noted in the reasons published 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”.

The plaintiff then sought leave to appeal to the Federal Court of Australia against the decision of the Federal Circuit Court.  On 31 October 2014, Justice Nicholas in the Federal Court refused leave, concluding that he was satisfied “that the primary judge’s decision is not shown to be attended by any doubt”.

In support of his application for an order to show cause filed in this Court the plaintiff has filed an outline of submissions.  He submits in that outline, and again today submitted orally, that the failure of the nomination by an employer for the visa he sought was not his fault.  He said in his written submissions that he can seek another nomination from another employer and in the course of oral submissions indicated that he had done so.

It remains right to say, however, in this Court, as in the Federal Court and the Federal Circuit Court, that the Tribunal was right to conclude that at the time the Tribunal made its decision there was no information before it to indicate that the relevant appointment to a position in the employer’s business had been approved or that any appointment had been approved in respect of the applicant under regulation 5.19 of the Migration Regulations. That is, on the material in this Court, the Minister is right to submit, as he does, that the decision reached by the delegate of the Minister and by the Tribunal on review of the merits of the plaintiff’s case was right.

In the end, the plaintiff’s submission to this Court is that it should reopen the course of events that has transpired in the Tribunal and in the courts below because the circumstances in which he now finds himself are exceptional circumstances beyond his control.  It may be accepted that the circumstances in which he finds himself are beyond his control and have been brought about largely, perhaps entirely, through what occurred with his original nominating employer.

The plaintiff’s sense of grievance is, no doubt, heightened if it be the fact, as he says, that the employer who nominated him for the visa did not pay him all the entitlements that he had for the work that he did for that employer.  Nonetheless, the fact remains that the application which the plaintiff makes to this Court is one which must fail.

There is nothing revealed by the papers which would suggest that there is any error made, either by Justice Nicholas or by Judge Lloyd‑Jones in the Federal Circuit Court, that would warrant a grant of judicial review of those decisions.  There is nothing revealed by the papers that would show that the decision of the delegate or the Tribunal was attended by any jurisdictional error.  It follows that the proceedings in this Court must fail.  They will be dismissed.

MR KNOWLES:   Your Honour, the Minister would seek the usual order that costs follow the event.

HIS HONOUR:   They must be dismissed with costs.  There will be orders in those terms.  Adjourn the Court.

AT 11.34 AM THE MATTER WAS CONCLUDED