Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 304
•25 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 304
File number(s): CAG 24 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 25 February 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Sponsored Migration Scheme (Subclass 187) visa – legal unreasonableness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss 359, 360 476
Migration Regulations 1994 (Cth), Sch 2, cl 187.223,
1114C(3)(d)
Commonwealth of Australia Constitution Act 1900
(Cth), s 75v
Cases cited: FRA18 v Minister for Home Affairs and Anor [2019] FCCA 2287
Patel and Ors v Minister for Immigration and Anor [2020] FCCA 808
WZAVW v Minister for Immigration [2016] FCA 760
Number of paragraphs: 37 Date of last submission/s: 17 February 2021 Date of hearing: 17 February 2021 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person. Solicitor for the Respondents: Ms Wright appeared on behalf of the first respondent. ORDERS
CAG 24 of 2020 BETWEEN: BALBIR SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
25 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs, fixed in the amount of $6100.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. On 31 July 2016, the applicant applied for a Regional Sponsored Migration Scheme (Subclass 187) visa on the basis of a proposed sponsorship by G.S. Nayyar Pty Ltd (“the sponsor”) in the nominated position of Retail Manager.
Clause 187.223 of the Migration Regulations 1994 (Cth) (“the Regulations”), is a primary criterion for the grant of the subject visa and requires, relevantly, that the Minister has approved the employer sponsor nomination: see cl 187.223 of Schedule 2 to the Regulations.
On 17 January 2018, the employer sponsor’s nomination application was refused. On the same day, the Department of Home Affairs (“the Department”) invited the applicant to comment on this information within 28 days. No response was received by the Department.
On 26 February 2018, a delegate of the Minister for Home Affairs (“the delegate”) refused to grant the applicant his Subclass 187 visa on the basis that he had failed to meet cl 187.223 of Schedule 2 to the Regulations, as he was not the subject of an approved employer sponsor nomination.
The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 22 April 2020, the Tribunal affirmed the delegate’s decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At paragraph 4 of its decision, the Tribunal noted that the applicant was seeking a visa in the direct entry stream to continue working in the nominated position of Retail Manager (General) ANZSCO 142111 with G.S. Nayyar Pty Ltd (“the Company”). The delegate refused to grant the visa on the basis that the applicant did not meet sponsor requirements of cl 187.233 of Schedule 2 to the Regulations because the nomination application made by the sponsoring Company had been refused.
At paragraph 6 of its decision, the Tribunal noted that the applicant was invited to attend a hearing by way of teleconference to be held on 15 April 2020. The applicant’s representative, Mr Abdul Khan of AHK Australian Migration Solution, replied on 14 March 2020 with a signed response indicating that the applicant (only) would attend the hearing.
On 31 March 2020, the Tribunal wrote to the applicant pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) inviting him to comment on, or respond to, information which would, subject to his comments and response, be the reason, or part of the reason, for affirming the decision under review to refuse his Subclass 187 visa application. The applicant was advised that information before the Tribunal indicated that the sponsoring Company was deregistered by ASIC on 18 August 2019. Consequently, on 5 November 2019, a differently constituted Tribunal found that it had no jurisdiction in relation to the application for review of the delegate’s decision to refuse the Company’s nomination and, as such, there was currently no approved nomination by the Company in respect of him. Consequently, the work position to which the applicant’s visa application relates, could not meet the criteria in cl 187.223(3) of the Regulations.
The s 359A of the Act letter, was sent to Mr Singh via his representative, Mr Khan, at the email address provided in connection with the review application for correspondence. The Tribunal’s letter advised that if comments were not provided in writing by 14 April 2020 or a request for an extension of time in which to provide comments was not received by that date, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and, further, the applicant would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.
No response was received, nor was an extension of time requested. Accordingly, pursuant to
s 359C and s 360(3) of the Act, the review applicant was not entitled to appear before the Tribunal.
Somewhat surprisingly, the applicant appeared before the Tribunal by way of teleconference for an interview on 15 April 2020. His registered Migration Agent did not attend the interview. The applicant informed the Tribunal that his registered Migration Agent did not advise him about the Tribunal’s s 359A of the Act letter. The Tribunal determined that it would consider anything that he said, and provided the applicant with the gyst of the s 359A of the Act letter.
The applicant told the Tribunal that the Company had closed down, but it was not his fault and further, that he been working there for three years. The applicant added that, as a result of COVID-19, he did not know what to do as he could not go back to India because of an international travel ban imposed by the Australian Government. The Tribunal advised the applicant that it could not provide him with immigration advice or assistance.
At paragraph 15 and onwards of its decision, the Tribunal considered the applicant’s claim and the evidence. The Tribunal noted at paragraph 18 of its decision that the sponsor Company’s nomination application had been refused by the Department on 17 January 2018. Although the Company sought review of the delegate’s refusal of its nomination application, the Company was deregistered by the Australian Securities and Investments Commission (“ASIC”) on 18 August 2019. A differently constituted Tribunal found in these circumstances, that it did not have jurisdiction to review an application for review of the nomination by the sponsor Company.
As a result, the Tribunal found that the applicant did not meet the criteria in cl 187.2333 of Schedule 2 to the Regulations in that he was not the subject of an approved employer’s nomination. Accordingly, the Tribunal determined that it had no option other than to affirm decision under review.
GROUNDS OF JUDICIAL REVIEW
The applicant relies on two grounds of judicial review set out in an application filed with the Court on 21 May 2020. They are as follows verbatim:
Ground One
Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs had refused my Nomination Application and then Visa application for 187 visa (RSMS). I had submitted all the documentation and also gave the evidence of Job Offer to Immigration Department, but the Department didn’t consider it and on the basis of assumptions Immigration Department had refused my application.
Ground Two
Then I lodged appeal against my visa refusal to Administrative Appeals Tribunal. Administrative Appeal Tribunal also did not considered my evidences and affirmed the Immigration department decision.
I believe Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs and MRT-RRT made Judicial Error which needs to be rectified.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an Interpreter and the Court was satisfied that he was able to understand and effectively participate in the hearing.
Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court Books and the first respondent’s written submissions. The applicant also confirmed that he was in possession of a pen and paper to make notes should he wish to.
At the commencement of the hearing, the applicant asked if this was an Interim or Final hearing. The Court explained it was a Final Hearing. The applicant stated that he had been told he would have an Interim Hearing prior to the Final Hearing. The applicant stated that he would like to have a legal representative. The Court notes that the Initiating Application was filed with the Court on 20 May 2020. At no time since then has the applicant obtained legal assistance.
Further and crucially, emails sent to the applicant by Chambers on 3 December 2020, 19 January 2021 and 11 February 2021 clearly indicated that the matter is listed for a Final Hearing. The application to adjourn the matter was refused.
The Court carefully explained the process that the hearing would follow. The Court also explained the difference between merits review and judicial review.
Despite Court orders, the applicant did not provide any written submissions in support of his application.
The applicant told the Court that he had obtained work with another employer but was unable to apply for a work visa unless he left Australia. The Court advised the applicant that he should seek legal advice on this matter. The applicant then stated that he wanted to be given another chance to stay in Australia.
Following the first respondent’s oral submissions, the applicant was invited to again address the Court in relation to any reply to the matters raised by the first respondent. The applicant told the Court that he had nothing further to add.
THE FIRST RESPONDENT’S SUBMISSIONS
In written submissions, the first respondent firstly noted that the only order sought in the application for judicial review is a writ of certiorari for the Tribunal decision to be quashed. As the applicant had not sought a writ of mandamus, prohibition or an injunction against the Tribunal (as provided for by s 75(v) of the Commonwealth of Australia Constitution Act 1900 (Cth)), the applicant had failed to properly invoke the Court’s jurisdiction pursuant to s 476(1) of the Act. As a result, the applicant’s application for judicial review is liable for dismissal, as incompetent: see FRA18 v Minister for Home Affairs and Anor [2019] FCCA 2287.
The first respondent noted that despite having the benefit of orders made by consent by Judge Neville on 14 August 2020, granting the applicant an opportunity to file and serve an Amended Application and an Affidavit containing additional evidence, no further documents have been filed by the applicant.
In relation to ground one, the first respondent notes that it takes issue with the departmental delegate’s decision, stating that the applicant “submitted all the documentation and gave the evidence of job offer but the Department failed to consider it and refuse the application on the basis of assumptions”. The first respondent notes that the Court has no jurisdiction to review the delegate’s decision as s 476(2)(a) of the Act applies. Accordingly, ground one fails.
Ground 2 states that the Tribunal did not consider the applicant’s evidences and affirmed the delegate’s decision. The applicant states that he believes that the Department and the Tribunal made ‘judicial error’. The applicant does not identify what evidence the Tribunal failed to consider. The only issue before the Tribunal, was whether the applicant met cl. 187.223 of the Regulations and, on the evidence before it, there was no approved nomination.
The Tribunal found the employer sponsor was deregistered as a Company and the applicant conceded in his interview that the sponsor Company had “closed down”. As there was no evidence before the Tribunal of an approved employer nomination, there was no other finding open to the Tribunal, other than to affirm the decision under review. The Tribunal has no general discretion in the matter: see Patel and Ors v Minister for Immigration and Anor [2020] FCCA 808 at [39].
Finally, it was submitted that even if some error were established in the procedure adopted by the Tribunal, (which is not conceded), relief ought to be refused on the basis that it would be futile to remit the matter to the Tribunal as the applicant could not meet the requirements of
cl 187.223(3) of the Regulations.
As the applicant is not the subject of an approved employer nomination, as the approved nomination must be the nomination identified in the visa application, the applicant cannot substitute it with a new nomination: see item cl. 1114C(3)(d) of Schedule 1 of the Regulations. Accordingly, the application for judicial review must fail.
CONSIDERATION
The facts in this matter are not in dispute. The applicant sought an employer sponsored work visa which required that there be an approved employer nomination. The initial application by the Company was refused. Subsequently, the Company was deregistered. Accordingly, there was no approved employer nomination before the Tribunal to consider. Nor was there any review application by the Company in relation to the refusal of the nomination in relation to the applicant.
In relation to the first matter raised by the first respondent, and all the circumstances, the Court granted leave to the applicant to amend his application, in Court, to include a writ of mandamus and prohibition. By so doing, the Court’s jurisdiction to entertain the application for judicial review is confirmed.
In relation to the grounds of judicial review, the Court agrees with the first respondent that in relation to ground one, the Court has no jurisdiction to consider the refusal by the Department. No particulars are provided in relation to ground two, as to what evidence was not considered by the Tribunal. A bare or bland assertion does not constitute jurisdictional error in the absence of particulars: see WZAVW v Minister for Immigration [2016] FCA 760 at [35].
In the applicant’s circumstances, the Tribunal had no option other than to affirm the decision under review, as the applicant could never meet the requirements of cl 187.223 of the Regulations. The Court is satisfied that there was no procedural unfairness in the procedure adopted by the Tribunal. Nor was the decision of the Tribunal tainted by illogicality, irrationality or legal unreasonableness. None of the applicant’s grounds either raised in the application or subsequently, reveal any jurisdictional error by the Tribunal.
As the applicant was unrepresented, the Court carefully reviewed the Tribunal decision record but could find no jurisdictional error that was unarticulated.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 25 February 2021
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