Singh v Minister for Immigration & Border Protection

[2015] FCCA 935

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 935

Catchwords:
MIGRATION – Migration Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.140GB
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: GAGANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 3280 of 2014

Judgment of: Judge Emmett

Hearing date: 13 April 2015

Date of Last Submission: 13 April 2015

Delivered at: Sydney

Delivered on: 13 April 2015

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr David McLaren
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3280 of 2014

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 25 November 2014, the applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal dated 4 November 2014 and handed down on 5 November 2014 (“the MRT”).

2. On 12 March 2015, the applicant attended a directions hearing before a Registrar of the Court. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court. The applicant confirmed that he wished to continue with the application for judicial review of the MRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 2 April 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 2 April 2015. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services.

3. The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.

4. Rule 44.12 of the Rules provides as follows:

   “(1) At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The applicant was unrepresented before the Court this morning and did not require the assistance of an interpreter.

7. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the Court’s directions or otherwise.

8. The applicant’s application for judicial review, filed on 25 November 2014, stated the grounds of review as follows:

   “1. The decision of the Migration Review Tribunal involves jurisdictional error.

   2. The Tribunal ignored relevant material.”

9. The grounds of the application were read to the applicant and the applicant was invited to make submissions in support of the grounds.

10. The applicant confirmed that his complaint was to the effect that the MRT’s decision involved jurisdictional error because the MRT ignored relevant material. The applicant was asked what the relevant material that the MRT ignored was and he responded that he had sent a copy of his curriculum vitae to the Department of Immigration and Border Protection (“the Department”) as his nomination had not been approved because the Department was not satisfied of the level of experience of his work. I understand such a complaint to be a disagreement with the findings and conclusions of the MRT.

11. The background of this matter and the review of the MRT, including its decision, are accurately summarised in the written submissions of the solicitor for the first respondent. Those submissions are as follows:

    “On 18 December 2012, the applicant applied for a Temporary Business Entry (Class UC) (Subclass 457) visa (Court Book (CB) 1-12). The applicant was nominated for the position of Customer Service Manager, with his sponsoring employer being Chaudhary Riaz and Sons Pty Ltd (trading as 7 Eleven Stores Pty Ltd).

    At the time of his application, Class UC contained subclasses 456 and 457. The criteria for the grant of a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Regulations).

    On 18 February 2013, a delegate of the Minister refused the applicant’s application (CB 33-41). This was because the delegate was not satisfied that the applicant had demonstrated that he had the skills at a commensurate level to successfully perform the approved nominated occupation, and thus found that the applicant did not satisfy cl 457.223(4)(e) of Schedule 2 to the Regulations.

    Tribunal proceedings

    On 10 March 2013, the applicant applied to the Tribunal for review of the delegate’s decision (CB 42-52).

    On 5 May 2014, the Tribunal wrote to the applicant (via his authorised recipient) inviting him to provide further information in respect of his application, including:

    i. information to demonstrate that the applicant meets the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations, which requires that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor which has not ceased; and

    ii.   any additional information that the applicant wished the Tribunal to consider in assessing whether he has the skills, qualifications and employment background that are necessary to perform the occupation for which he had been nominated (see CB, 58-61).

    On 21 May 2014, the applicant provided further material to the Tribunal in response to its invitation of 5 May 2014 (see CB 65-128). The applicant provided further documents to the Tribunal on 2 June 2014 and 3 June 2014 (CB 129-132).

    On 10 June 2014, the Tribunal wrote to the applicant (via his authorised recipient) inviting him to comment on information that the Tribunal considered may be the reason, or part of the reason for affirming the decision under review (CB 133-136). This information was that, according to the Tribunal’s records, the approved nomination of an occupation in relation to the applicant by his sponsor had expired on 16 January 2014. The Tribunal identified this as relevant because to meet the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations, there must be an approved nomination of an occupation in relation to the applicant by a standard business sponsor which has not ceased.

    On 23 June 2014, the applicant’s representative sent a facsimile to the Tribunal in response to the Tribunal’s letter of 10 June 2014 (CB 137-144). The representative noted that a new nomination had been lodged with the Department on 20 June 2014 and provided a copy of the nomination form record of responses.

    By letter dated 22 July 2014, the Tribunal wrote to the applicant (via his authorised recipient) to invite him to attend a hearing scheduled for 3 September 2014 (CB 145-148). This hearing was rescheduled, and by letter dated 23 July 2014 the Tribunal invited the applicant to attend a hearing on 5 September 2014 (CB 149-152).

    On 2 September 2014, the applicant’s representative sent a response to hearing invitation form to the Tribunal indicating that the applicant and his representative would attend the hearing (although it is noted that the form provided was the original form in relation to the hearing scheduled on 3 September 2014) (CB 153-154).

    On 4 September 2014, the applicant’s representative provided the Tribunal with medical evidence advising that the applicant was suffering from a viral infection and was unable to attend the hearing on the following day (CB 155-156).

    As a result of this, the Tribunal agreed to postpone the hearing scheduled for 5 September 2014 (CB 157-159).

    On 10 September 2014, the Tribunal invited the applicant to attend a re-scheduled hearing on 4 November 2014 (CB 160-163). On 24 September 2014, the applicant provided the Tribunal with a response to hearing invitation form by fax (CB 164-165).

    The applicant failed to attend the hearing on 4 November 2014 and no reason was provided for his non-attendance (CB 166-168). The Tribunal then proceeded to a decision and on that date affirmed the decision under review (see CB 172-177).

    Tribunal decision

    The Tribunal identified the issue in this matter as being whether the applicant met the requirements of cl 457.223 of Schedule 2 to the Regulations (CB 173, at [6]).

    The Tribunal set out the background correspondence between the Tribunal and the applicant in relation to whether there was an approved nomination of an occupation in relation to the applicant (CB 173-174, at [11]-[12]). The Tribunal noted that, on 29 September 2014, the Department refused the nomination application by Chaudhary Riaz and Sons Pty Ltd trading as 7 Eleven Stores Pty Ltd (CB 174, at [13]).

    The Tribunal noted that there was no evidence that the applicant, or the business activity specified in the application and relating to the applicant, was the subject of an approved business nomination under s 140B of the Migration Act 1958 (Act). The Tribunal therefore found that the applicant did not meet the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations (CB 174, at [19]).

    The Tribunal noted that no claims had been made in respect of the other sub-criteria in cl 457.22 of Schedule 2 to the Regulations, but nevertheless considered the other grounds as part of its determination of whether the applicant satisfied cl 457.223 of Schedule 2 to the Regulations. The Tribunal noted that there was no evidence that the applicant would be able to satisfy the criteria in those clauses and, accordingly, found that the applicant did not meet the requirements of cl 457.223 (CB 174, at [20]).

    The Tribunal therefore affirmed the decision under review.”

12. The first respondent’s solicitor, Mr McLaren, tendered a bundle of documents identified as ‘Court Book’ and filed on 26 March 2015. Those documents were marked Exhibit 1R. Exhibit 1R, inter alia, contains a copy of the MRT’s decision record.

13. The MRT’s decision record makes clear that the reason it affirmed the decision under review was because the applicant had failed to comply with a mandatory criterion for his visa. That condition was that the applicant and the business activity specified in the application and relating to the applicant, was the subject of an approved business nomination under s.140GB of the Act.

14. The applicant did have such a nomination at the time of the decision of a delegate of the first respondent, dated 18 February 2013 (“the Delegate”). The Delegate refused the applicant a protection visa on the basis that it was not satisfied that the applicant had the skills that were necessary to perform his nominated occupation. That criterion, being cl.457.223(4)(e) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), was also a mandatory criterion. However, the applicant’s nomination had lapsed by the time of the MRT decision.

15. The MRT was required to make its decision based on the evidence and material before it at the time of its decision in accordance with cl.457.22 of Schedule 2 to the Regulations.

16. In circumstances where the applicant was unable to satisfy cl.457.223(4)(a)(i) of Schedule 2 to the Regulations; that is, that he had a nomination of an occupation in relation to himself that had been approved under s.140GB of the Act, the MRT had no option other than to find that the applicant did not meet the mandatory criterion of his visa.

17. The MRT found there was no evidence before it that the applicant and business activity specified in his application were the subject of an approved business nomination under s.140GB of the Act and, therefore, that the applicant did not meet the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

18. That critical finding was open to the MRT on the evidence and material before it and for the reasons it gave.

19. The applicant’s complaint otherwise cavils with the merits of the MRT’s findings and conclusions and, as such, this Court cannot interfere (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

20. In the circumstances, whilst I make no final decision as to whether or not the MRT’s decision is affected by jurisdictional error the applicant has not identified any error on the part of the MRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The MRT referred to the relevant law in affirming the decision under review.

21. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 25 November 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  24 April 2015