Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 929
Federal Circuit and Family Court of Australia
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 929
File number(s): MLG 1656 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 November 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 187 visa – whether applicant denied procedural fairness – whether Tribunal made decision without evidence – whether Tribunal took into account irrelevant matters. Legislation: Migration Act 1958 (Cth) ss 347, 348, 359A, 360, 363, 476,
Migration Regulations 1994 (Cth) cl 187.233
Cases cited: Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Nathanson v Minister for Home Affairs [2022] HCA 26
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 8 November 2022 Date of hearing: 8 November 2022 Place: Parramatta Counsel for the Applicants: The Applicants appeared in person. Solicitor for the Respondents: Ms Meaney appeared on behalf of the First Respondent. ORDERS
MLG 1656 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARAMJEET SINGH
First Applicant
NAVJOT ARORA
Second Applicant
SEHAJTA CHAWLA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
11 November 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs.”
2.The application is dismissed.
3.The First Applicant is to pay the First Respondents costs, fixed in the amount of $4000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
The applicants are citizens of India. The First applicant has been in Australia for 11 years. The second and third applicants are part of the first applicant’s family unit. Their visas depend upon the first applicant being granted a visa of the class sought. The applicants applied for Regional Employer Nomination (Permanent) (Class RN) visas (‘Employer Nomination visa’) on 12 June 2016. On 12 July 2017, a delegate of the Minister for Immigration (‘the delegate’) refused to grant the applicants their Employer Nomination visa.
On 31 July 2017, the applicants sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal affirmed the delegate’s decision not to grant the applicants their Employer Nomination visas on 21 May 2018.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
Administrative appeals tribunal decision
Paragraphs 1 to 9 of the Tribunal’s decision record provide a summary of the applicants’ visa applications. At paragraph 10, the Tribunal states that the issue in the matter was whether the first applicant had a valid nominated position with the employer sponsor. It further noted that the nominated position was refused by a delegate on 30 May 2017 and affirmed by the Tribunal on 2 May 2018.
At paragraph 11, the Tribunal states that it provided the first applicant with an overview of cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal also provided to the first applicant a copy of the Tribunal’s decision relating to the nomination refusal of 2 May 2018 pursuant to s 359AA of the Migration Act 1958 (Cth) (‘the Act’).
At paragraphs 13, the Tribunal noted that the first applicant gave evidence that he was initially invited by a Mr Joshi to fill in a position of pastry cook in the Ballarat area. The first applicant stated that” I was in touch and agreed to terms and conditions of visa” and further explained that this entailed a commitment to work for at least 2 years.
At paragraph 14, the Tribunal records that the first applicant confirmed that he had not paid any money and that he had not performed any work for the nominator. At paragraph 15, the Tribunal states that the first applicant gave evidence that the nominator was unapproachable and uncontactable. At paragraph 16, the Tribunal notes that it informed the first applicant that it was unable to provide advice to the applicants, however that they should contact their migration agent for advice.
At paragraphs 17 and 18, the Tribunal notes the requirements for the grant of a visa sought by the applicants. Relevantly, cl 187.233 of Schedule 2 to the Regulations requires that the position to which the application relates be the subject of an approved nomination. At paragraph 19, the Tribunal states that there was no evidence before it of an approved nomination under reg 5.19(4) of the Regulations and that the first applicant was unable to satisfy the Tribunal that he met cl 187.233(3).
At paragraph 20, the Tribunal states that cl 187.233 of Schedule 2 to the Regulations was not met. At paragraph 21, the Tribunal notes that the first applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream and that no other claims had been made in respect of another stream. As the requirements for the grant of a visa in the Direct Entry stream had not been met, the Tribunal found that the decision under review had to be affirmed.
At paragraph 22, the Tribunal notes that the first applicant’s Employer Nomination visa application included the second and third applicants as secondary applicants. As the first applicant had not satisfied the primary criteria for the grant of the Employer Nomination visa, the secondary applicants were also unable to satisfy the criteria for the grant of a visa in that class.
Grounds of judicial review
The applicants’ grounds of judicial review are contained within an Initiating Application filed with the Court on 12 June 2018. The grounds are reproduced below as they appear in the application:
1.Member failed to consider the Department of immigration and border protection did not accord to the applicant procedural fairness and natural justice.
2.Member failed to put my verbal evidences into consideration and hence my matter must be looked after again and proper hearing must be conducted.
3.The decision of the member have jurisdiction error and was not determined according to law as the circumstances at the time of the application was not considered and this must be overlooked again according to law.
4.The cl. 187.233(3) visa applications requires the Minister to be satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(1)The position to which the application relates is the position:
(a) Nominated in an application for approval that:
(i)Identifies the applicant in relation to the position; and
(ii)Is made in relation to a visa in a Direct Entry stream; and
(iii)Seeks to meet the requirements of subregulation 5.19(12); and
(b)In relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule was made in the application for the grant of the visa.
(2)The person who will employ the applicant is the person who made the nomination.
(3)The Minister has approved the nomination.
(4)The nomination has not subsequently been withdrawn.
(4A)Either
(a)There is no adverse information known the immigration about the person who made the nomination or a person associated with that person; or
(b)It is reasonable to disregard any adverse information known to immigration about the person who made the nomination or a person associated with that person.
(5)The position is still available to the applicant.
(6)The application for the visa is made no more than 6 months after the Minister approved the nomination.
Particulars: according to my knowledge
I satisfy cl.187.233(3) because I was nominated by the employer and he applied for the visa and nomination which was refuse
Employer was not mt relative and the documentary evidences were provided for the same.
The visa was 187 visa and was not the direct entry stream
The valid application was made before the expiry of substantive visa
I have worked for 2 years with the person and he paid me which was denied by the immigration and was the reason for the refusal of nomination
The nomination AAT was also applied and never been withdrawn
5.Tribunal Member did not paid any heed towards the evidences and references of the cases provided by me and argued on the questions that were irrelevant and not in question by the Department Of Home Affairs.
6.The Member erred in dismissing the applicant’s review application by relying on hearsay evidences obtained by department of immigration which was not tested and put to the applicant.
7.Member also paid no heed towards my circumstances at the time of application and only considered the current circumstances and this depicts the error in the decision.
8.The Member failed to consider that each case have its own facts and merits and ought to be considered separately and not as a group.
9.The member erred in coming to the conclusion and no opportunity was given to provide evidences.
10.Member erred in dismissing the applicant’s application without providing extra time without any basis in law and fact.
11.The applicant’s application clearly raises an arguable case.
The applicants’ submissions.
The first applicant appeared before the Court on behalf of himself and the second and third applicants. The first applicant was unrepresented. While an Interpreter was available the first applicant did not require the use of the Interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him. The Court also ensured that the first applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.
At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the court by the applicant in support of his case. The applicant told the Court he was aware that for the type of visa he was seeking he needed an approved employer sponsor. After the initial nomination was refused by the Department, his employer disappeared. The first applicant stated that he had used the time taken for the matter to come on for hearing to try to secure another visa of this type or a different type of visa. The first applicant had been in Australia for 15 years and was settled here.
Consideration
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
The difficulty in this case is that the first applicant lacks an essential criteria for the grant of the visa sought. In order to be granted a Regional Employer Nomination visa, the applicant must have an approved employer nomination in order to satisfy cl 187.233 of the Regulations. It is common ground that the first applicant lacks such a nomination. In these circumstances, the Tribunal had no option other than to affirm the decision under review. Even if jurisdictional error exists (which is denied by the first respondent) it would be futile to remit the matter back to the Tribunal for further consideration as it would be required to make the same decision.
The first respondent submitted that the Court should not exercise its discretion in remitting the matter as it would be futile: (see; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609). The applicants’ claim cannot be cured by the lodging on a new nomination application: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82]-[90]). As there is no evidence that the nominator had sought judicial review of the nomination refusal, the applicant cannot satisfy cl 187.233 of Schedule 2 to the Regulations. The Court agrees with this submission.
In terms of the grounds of judicial review relied upon by the applicant, the First Respondent submitted that the applicants’ first ground of judicial review is misplaced. The Court does not have jurisdiction to review the decision of the delegate: (see; s 476 of the Act). Even if the delegate’s decision was affected by error, the de novo merits review by the Tribunal would cure this: (see; Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 561 at [32]). The Court agrees with this submission.
The first respondent submitted that applicants’ second ground, that the Tribunal failed to consider his evidence, lacks any proper basis. The Tribunal considered the first applicant’s work history (Tribunal Decision [12]-[14]) and his inability to contact the nominator (Tribunal Decision [15]-[16]). There is no evidence before the Court that might indicate that anything other than a proper hearing in accordance with s 360(1) of the Act was conducted. The Tribunal explained the requirements of cl 187.233 (Tribunal Decision [10]), invited the applicants to comment on the nomination refusal pursuant to s 359AA of the Act (Tribunal Decision [11]), and considered the first applicant’s oral evidence (Tribunal Decision [13]-[16]. The Court agrees with this submission.
The first respondent submitted that grounds three and four raise the same issue, that the decision was not made according to law. The applicants misunderstand the visa criteria by describing it as a requirement for genuine temporary entry. Rather, cl 187.233(3) of Schedule 2 to the Regulations is a requirements that the primary applicant’s visa be the subject of an approved nomination. It was open to the Tribunal to find that cl 187.233(3) was not met as the nomination application was refused by the delegate and the decision was affirmed by the Tribunal on 2 May 2018. The Court agrees with this submission.
The first applicants submitted that ground five contains no particulars. A failure to provide particulars is a sufficient basis for it to be dismissed: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). There is no information to indicate that the applicants provided any documentary evidence to the Tribunal. There is also no evidence to support the claim that the Tribunal asked irrelevant questions. The Tribunal’s reasons suggests that it was focussed on whether the first applicant met cl 187.233 to Schedule 2 of the Regulations and the ability to meet this criterion was in question before the delegate and the Tribunal. The Court agrees with this submission.
The first respondent submitted that ground six has no proper basis as he Tribunal adopted an independent reasoning process that did not solely rely on the delegate’s decision. The information considered by the Tribunal, that a differently constituted Tribunal had affirmed the nomination refusal, is not disputed by the applicants. The Court agrees with this submission.
The first respondent submitted that ground seven again misunderstands the cl 187.223 of Schedule 2 to the Regulations criterion. Ground eight invites the Court to engage in impermissible merits review and has no substance: (see; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Grounds seven and eight have no merit.
The first respondent submitted that, in relation to ground nine, if the applicants complaint is that the Tribunal failed to comply with s 359AA(b)(iv) of the Act by not adjourning the review, such a complaint cannot succeed in the absence of a transcript. It ought to be assumed that the Tribunal complied with s 359AA(v)(iv) of the Act but did not consider it necessary to provide the applicants additional time. It was further submitted that, as the first applicant did not satisfy the cl 187.233 of Schedule 2 to the Regulations, no other option was open to the Tribunal such that compliance with s 359A of the Act would not have led to any alternative decision:
(see; Nathanson v Minister for Home Affairs [2022] HCA 26). Ground nine has no merit.
conclusion
None of the grounds of judicial review have any merit. As the first applicant is unrepresented the Court has perused the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error. The first applicant understands he cannot meet an essential requirement for the visa sought. In these circumstances, even if jurisdictional error was present it would be futile to send the matter back to the Tribunal for reconsideration. The application must be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 11 November 2022
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