Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 608

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 608

File number(s):

SYG 1813 of 2017

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

30 March 2021

Catchwords:

MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant 457 visa – whether Tribunal erred in finding the applicant did not satisfy the requirement that there be a nomination of occupation in relation to the applicant – no error – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 5, 140E, 140G, 140GB(1), 140M, 476

Migration Regulations 1994 (Cth) regs 1.03, 2.72(10)(f), Sch 2, cl 457.223

Cases cited:

Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3638

Number of paragraphs:

23

Date of hearing:

10 December 2020

Place:

Sydney

First Applicant:

Appeared in person, by telephone, assisted by an interpreter

Second Applicant:

Appeared in person, by telephone, assisted by an interpreter

Solicitor for the First Respondent:

Mr A Moss of Clayton Utz, by telephone

ORDERS

SYG 1813 of 2017

BETWEEN:

PIRTHI PAL SINGH

First Applicant

AMANDEEP KAUR

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	30 MARCH 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants pay the first respondent’s costs set in the amount of $7,206.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants a Temporary Business Entry (Class UC) visa (457 visa).

   BACKGROUND

2. The applicants are husband and wife, and citizens of India.

3. On 19 March 2015 the applicants lodged an application for a 457 visa. The form of application recorded the husband (applicant) as the “visa applicant” and the wife (second applicant) as the “secondary visa applicant”.

4. To have been entitled to the grant of a 457 visa the applicant had to meet the requirements of one of two alternative streams identified in cl 457.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Relevant to the case before me is the “standard business sponsor” stream in cl 457.223(4), which relevantly provided as follows:[1]

   The applicant meets the requirements of this subclause if:

   (a)       each of the following applies:

   (i)a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)the approval of the nomination has not ceased as provided for in regulation 2.75 . . .

   [1] As noted by the Minister, class 457 of Schedule 2 was repealed with effect from 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (clause 2(1) and Schedule 1, Part 1, item 167), but, under the transitional item provision in item 6702 of Schedule 13 to the Regulations, the repeal takes effect only in relation to visa applications made on or after that date.

5. Subsection 140GB(1) of the Act provides that an “approved sponsor” may nominate an applicant or proposed applicant for a visa of a prescribed kind in relation to, among other things, the applicant’s or proposed applicant’s proposed occupation. The expression “approved sponsor” is defined in s 5 of the Act as a person who has been approved by the Minister under s 140E of the Act in relation to a class prescribed by the Regulations for the purposes of s 140E(2) of the Act, and whose approval has not been cancelled under s 140M of the Act or has otherwise ceased to have effect under s 140G of the Act. “Standard business sponsor” is defined in reg 1.03 of the Regulations to mean an “approved sponsor” who has been approved “in relation to the standard business sponsor class by the Minister under subsection 140E(1) of the Act”. Subsection 140E(1) of the Act provides that the Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of s 140E(2) if prescribed criteria are satisfied.

6. In his form of application the applicant identified Friends Roadlines Pty Ltd (Friends Roadlines) as his “sponsoring employer”. The applicant also provided a “Sponsorship Application Transaction Reference Number”, and also a “Nomination Application Transaction Reference Number”. The applicant did not complete the field requiring the inclusion of a “Nomination Approval Number”.

7. By letter dated 4 June 2015 the Department of Immigration and Border Protection (Department) informed the applicant’s agent that one of the criteria for the grant of a 457 visa is that the applicant’s prospective employer, Friends Roadlines, has an approved nomination, but Friends Roadlines did not have an approved nomination for the applicant. The Department further stated that, for this reason, the applicants’ application for a 457 visa was unlikely to be successful. The letter then identified a number of options available to the applicants, including providing comments.

8. On 30 June 2015 the applicants’ agent sent an email to the Department stating that a “new nomination application has been lodged by the sponsoring employer”. Friends Roadlines had by that time lodged a nomination application in relation to the applicant; but, on 15 September 2015, a delegate of the Minister refused that application. On the same day the Department sent a letter to the applicants’ agent informing them that the Department had refused Friends Roadlines’ nomination application. The applicants did not respond to the Department’s letter; and on 18 January 2016 the delegate refused to grant the applicants a 457 visa.

9. On 5 February 2016 the applicants applied to the Tribunal for review of the delegate’s decision. They appeared before the Tribunal on 11 April 2017 to give evidence and present arguments.

10. In the meantime, Friends Roadlines also applied for review of the decision refusing to approve Friends Roadlines’ nomination application in relation to the applicant. On 27 April 2017 the Tribunal affirmed that decision.

11. By letter dated 27 April 2017 the Tribunal informed the applicants the Tribunal had affirmed the decision not to approve Friends Roadlines’ nomination application in relation to the applicant, and invited the applicants to provide submissions. The applicant did so by email sent on 23 May 2017.[2] In his email the applicant stated, among other things, that he and the second applicant were not happy with the decision about the nomination; he had applied for a genuine position according to his qualifications and work experience; he is an honest man and not aware of the technical points of the immigration system; and he totally relied on his immigration agent.

    [2] CB81

    TRIBUNAL’S REASONS

12. The Tribunal set out the relevant chronology of the applicants’ application for a 457 visa, the requirements of cl 457.223(4) of Schedule 2 to the Regulations, the applicants’ appearing before the Tribunal on 11 April 2017 to give evidence and present arguments, and to the applicant’s email of 23 May 2017. After referring to the applicants not being able to satisfy cl 457.223(4) of Schedule 2 to the Regulations because there was no approved nomination, the Tribunal said it had considered the applicants’ submissions, but noted it does not have a discretion to disregard the requirements of cl 457.223(4).

    APPLICATION TO THIS COURT

13. The application contains the following statement under the “Grounds of application” section of the application: “To affirm the decision of AAT as per attacking the decision of AAT”. That states no ground on which the decision of the Tribunal could be set aside for jurisdictional error.

14. On 3 December 2019, however, the applicants filed a document titled “Submission in support of the following matter due for hearing on 03/12/2019” (Submission). The Submission states the applicant was working for Friends Roadlines as a transport company manager; the nomination application was refused on 4 June 2015; another nomination application was lodged on 30 June 2015; and that application was refused on 15 September 2015 on the basis of reg 2.72(10)(f) of the Regulations, with the case officer not being satisfied about the genuineness of the position. The Submission then refers to the applicant’s application for a 457 visa being refused because the application for nomination had been refused.

15. The Submission then makes six factual assertions.

    (a)The first relates to the case officer’s finding that Friends Roadlines had a turnover of $0. The Submission asserts that at the time of nomination Friends Roadlines was at its initial stages, but was growing. The Submission annexes the “income tax returns of company for the last 2 years”. What is annexed, however, is a profit and loss statement and a balance sheet.

    (b)The applicant has taken over Friends Roadlines, it has five full time drivers, and three casual drivers. The applicant took over the business because the previous director was unable to manage the company because he had a full time job elsewhere and he had to travel to India regularly.

    (c)The applicant has good driving experience; he has studied business management in Australia; and, being the owner of the company, the applicant is trying his best to grow the company, achieving last year a turnover of $800,000.

    (d)At the time of nomination Friends Roadlines had three vehicles but at the time of the Submission Friends Roadlines’ has seven vehicles.

    (e)Friends Roadlines is creating jobs in Australia lawfully. The case officer did not look into those matters.

    (f)The applicant and previous owner relied entirely on their migration agent and “we were not aware about the whole process”. The Submission stated that it “was our lack of information or knowledge about the whole process and we were not able to make proper representation of the case with the department and in the AAT”.

    Course of hearing

16. At the hearing before me on 10 December 2020 the applicants applied for an adjournment. For reasons I gave at the hearing, I refused the application on the basis that I would grant the applicants leave to file further material.[3] I then heard the matter during which the applicants made submissions. At the end of the hearing I made orders permitting the applicants to file and serve any further material on which they intend to rely by 31 December 2020, and to state in their material whether they want a further hearing. The applicants did not file any further material.

    [3] Singh v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3638

17. At the hearing the applicants, largely through the second applicant, made submissions about the applicant’s role in Friends Roadlines. The second applicant explained how the applicant was hired to work in the business of Friends Roadlines, the reasons why the owner of Friends Roadlines hired the applicant, and how the applicant wanted to grow the business. The second applicant then referred to what had occurred before the Tribunal in relation to Friends Roadlines’ application for review of the refusal of nomination. I asked the second applicant why she believed what happened or did not happen before the Tribunal in relation to Friends Roadlines’ application for review of the refusal of nomination was relevant to what the Tribunal did in relation to the applicant’s application for review of the delegate’s decision not to grant a 457 visa because the applicants could not comply with cl 457.223(4) of Schedule 2 to the Regulations. Understandably, the second applicant was not able to answer that question.

    Determination

18. The only question that arises on this application for remedies under s 476 of the Act is whether the Tribunal made any jurisdictional error in affirming the delegate’s decision not to grant the applicants a 457 visa. More particularly, the question is whether the Tribunal made any jurisdictional error, first, in finding that the applicant did not satisfy cl 457.223(4) of Schedule 2 to the Regulations and, second, in finding it had no discretion to relieve the applicants from the requirements that the criterion prescribed by cl 457.223(4) of Schedule 2 to the Regulations must be satisfied. The Tribunal made no error.

19. The requirements cl 457.223(4)(a) of Schedule 2 to the Regulations – that there be: a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and the approval of the nomination has not ceased – were mandatory; and the Tribunal, therefore, had no discretion to relieve the applicants from meeting those requirements. The applicants did not satisfy the requirements of cl 457.223(4)(a). The person whom the applicants in their application identified as the applicant’s “sponsoring employer” – Friends Roadlines – had not been approved as a sponsor under s 140E of the Act, and Friends Roadlines’ nomination of the occupation the applicant held with Friends Roadlines had not been approved under s 140GB(1) of the Act.

    Agent’s conduct

20. The applicants complained about their agent. These complaints are general in nature and not supported by any evidence. The applicants do not allege any dishonesty by their agent; and there is nothing before me that could suggest any dishonesty. Even if there was any suggestion of dishonesty, given the ground on which the Tribunal affirmed the delegate’s decision, namely, there was no approved nomination, and there is no suggestion there ever was an approved nomination, any dishonesty would have been incapable of stultifying the Tribunal’s exercise of jurisdiction to review the delegate’s decision.

    DISPOSITION

21. I propose to order that the application be dismissed.

22. As for costs, the Minister submitted that costs should follow the event, and that, should the Minister succeed, costs should be set in the amount of $7,206, being the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth). The second applicant said the applicants were not in a financial position to pay such costs.

23. I am satisfied that costs should follow the event, and that $7,206 is a fair indemnity for the costs the Minister incurred. Although I accept that ordering the applicants to pay the Minister’s costs will impose a financial burden on them, that is not a reason for not making an order for costs against them.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       30 March 2021