Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 55
•20 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 55
File number(s): PEG 342 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 20 January 2021 Catchwords: MIGRATION – Regional Employer Nomination visa – decision of the Administrative Appeals Tribunal – where applicant has no approved nomination – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, 476
Migration Regulations 1994 (Cth), cll 187.231, 187.232, 187.233 of sch 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 56 Date of hearing: 19 January 2021 Place: Perth The Applicant: Appeared in person Counsel for the First Respondent: Mr L Dennis The Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Minter Ellison Lawyers ORDERS
PEG 342 of 2020 BETWEEN: GURJIT SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CTIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
20 JANUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
The applicant is a citizen of India. He arrived in Australia in 2014 on a student visa (Court Book (“CB”) 21).
On 19 February 2018, the applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (CB 14-40). The applicant’s nominated position was “Baker”. He was sponsored by Mollarvey Pty Ltd (the “sponsor”).
On 15 August 2019, the then Department of Home Affairs advised the applicant that it had information that his sponsor’s nomination had been refused (CB 48-51). The Department invited the applicant to comment on this information or, alternatively, withdraw his application.
On 14 September 2019, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 53-59). The delegate determined that the applicant did not meet cl 187.233 of the Migration Regulations 1994 (Cth) (the “Regulations”) as he was not the subject of an approved nomination.
On 1 October 2019, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 60-61).
On 6 October 2020, the Tribunal invited the applicant to comment on or respond to information, as follows (CB 95-98):
The particulars of the information are:
•On 4 January 2018 MOLLARVEY PTY LTD (your nominator) made an application listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa).
•The position was said to be Baker and nominated you. However, on 15 August 2019 a delegate of the Minister rejected the application.
•Your nominator did not appeal the nomination refusal decision.
•This means that there is no approved nomination, and no review of that nomination refusal decision pending, that concerns you.
This information is relevant to the review because without an approved nomination, you will not meet an essential criterion for the grant of the visa.
On 15 October 2020, the applicant responded to the Tribunal as follows (CB 101):
I would like to inform that I have worked as baker for the sponsor for 10 months and she had promised to go through the nomination process for RSMS class of visa. It was due to my skills and calibre as a baker, the company agreed to sponsor me for the RSMS visa. I went through all the administrative processes required and have genuinely provided all documents and information needed. Eventually the processing time for my application kept being dragged for months. I was working there without any issues and have been able to prove myself as a good baker in the bakery. However, the company was going through some internal financials; due to which the nomination was refused. They refused to appeal against the decision. My visa was refused because of this. I then appealed to AAT for review of the visa refusal decision.
Since then I have been working in this field for another bakery. I have always proved myself as a valuable resource and I have a good history as a responsible person. I have always been proactive in doing my tax returns and have always tried to contribute towards the community in various ways. I can always provide a clean police clearance or any other background history. I have been living more than 6 years in Australia and I have adapted and made myself established here. Even with the COVID pandemic, I could survive and I am very confident that I will be able to get the job with my experience and knowledge in my field. I strongly believe that my situation is not due to any of my inabilities or my fault. Due to the lag in processing time with the immigration and also, every business goes through ups and downs, my visa got impacted.
I have made substantial contribution to the Australian economy while paying the student fees to the colleges and working for various employers and providing my skilled services. I appeal to the Tribunal to take the above matters into consideration when making a decision
The applicant attended a hearing before the Tribunal on 28 October 2020 (CB 103-106).
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 113-117).
On 16 November 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is five pages long and spans 16 paragraphs.
The Tribunal began by identifying the type of visa the applicant was seeking (at [1]-[2]). The Tribunal noted that the delegate had refused the visa as the applicant was not the subject of an approved nomination (at [3]) and confirmed that the applicant had appeared by telephone before the Tribunal (at [4]).
The Tribunal then summarised the criterion for the grant of the visa (at [6]-[7]).
The Tribunal noted that on 15 August 2019 the delegate had rejected the sponsor’s nomination application and that the sponsor had not appealed that decision (at [8]-[9]).
The Tribunal then explained that it had written to the applicant on 6 October 2020 inviting him to comment on certain information (at [10]). It then set out in full the applicant’s response (at [11]).
The Tribunal continued:
12. At hearing the Tribunal discussed the foregoing information. It is a requirement for the Direct Entry stream (cl.187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made. This requirement could not be satisfied by a later nomination of a position made by a different employer, and on current authority a nomination in respect of the same position made by the same employer could also not be relied on to meet these Schedule 2 criteria. [see Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105]. The Tribunal pointed out that it follows that where a nomination is refused, the visa applicant will not meet all of the requirements (cl.187.233).
13. The applicant responded that he currently works as a baker in Subiaco. He stated because of covid-19 he cannot leave Australia in order to make a fresh application. The Tribunal then told the applicant that as a new nomination would not satisfy the requirements, the Tribunal would not delay the review.
14. The Tribunal finds that there is no approved nomination and so cl.187.233(3) is not met.
The Tribunal affirmed the decision not to grant the applicant the visa (at [15]-[16]).
PROCEEDINGS IN THIS COURT
In his application for judicial review dated 16 November 2020, the applicant provides one ground of review (with particulars) as follows:
1. The Tribunal failed to take into account relevant considerations when deciding whether the applicant met the requirements for the visa, including the applicant’s age, qualifications and experience as a baker and the English language competency. Regarding the requirement for an approved nomination, the applicant already has an employer who is ready to apply to nominate him. This nomination application can be linked to the pending visa application.
Particulars
•The applicant had provided a statement to the Tribunal he had worked for the nominator employer for 10 months. The nomination application was not refused due to any fault of the applicant.
•The failure of the nominator to appeal against the refusal of the nomination application was something the applicant had no control over.
•The applicant had done and met all the requirements for the subclass 187 visa
•The applicant has a prospective nominator willing to apply for a new nomination in place of the original nominator.
•The Tribunal’s decision to accept the delegates’ decision has deprived the applicant of being nominated by the new prospective nominator.
The applicant also filed an affidavit affirmed 13 November 2020 which provides:
4. I applied for a regional employer sponsored permanent visa under subclass 187 on 19 February 2018. My occupation is a baker.
5. The employer who nominated me for the permanent visa was Mollarvey Pty Ltd trading as Bakers Delight in Busselton. They lodged the nomination application on 4 January 2018 to nominate me as a baker.
6.I continued to work for the employer as a full-time baker after lodging the visa application.
7. After a very long time since lodging the nomination application, in August 2019, my employer informed me that their nomination application had been refused.
8. I then looked for another job and got a job at Bakers Delight in Subiaco. The employer is willing to nominate me for the permanent residence visa.
9. I believe that the decision of the AAT has been wrongly made because it did not take the relevant considerations into account when making the decision on my visa application. The relevant considerations were whether I met the requirements for the 187 visa, including age, qualifications, experience and my English language standard. I met all these requirements. I am an experienced baker with at least 3 years’ experience. Regarding the requirement for an approved nomination, I already have an employer who is ready to apply to nominate me. I have a pending visa application that can be linked to the new nomination.
10. I urge the Court to review the second respondent’s decision and set it aside.
11. I look forward to a positive outcome.
The applicant was given an opportunity to provide any amended application, any supporting affidavits and an outline of written submissions. No further materials were filed.
The materials before the Court thus include the materials set out above, a Court Book numbering 117 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 12 January 2021.
On 14 January 2021, the applicant emailed Chambers advising that, as he was in Melbourne, he was unable to return to Perth for the hearing. The applicant requested that his hearing be adjourned or, alternatively, transferred to Melbourne. Chambers advised that unless the Minister consented to an adjournment, the hearing would proceed and the applicant would have leave to appear via Microsoft Teams. The Minister opposed the hearing being adjourned and indicated that there was no reason why the applicant could not appear via Microsoft Teams. Chambers advised the parties that the matter would proceed via Microsoft Teams and provided instructions and a detailed guide on how the applicant could connect to the hearing.
The applicant appeared before the Court without legal representation via Microsoft Teams. The Minister’s solicitor also appeared via Microsoft Teams. The Court first confirmed with the applicant whether he still sought an adjournment or transfer. The applicant indicated that he was ready to proceed with the hearing via Microsoft Teams.
The Court is satisfied that the applicant was able to properly participate via Microsoft Teams throughout the hearing.
The Court confirmed with the applicant that he had received a copy of the Court Book and the Minister’s written submissions and that he had had an opportunity to review these documents. The applicant indicated that he had received and reviewed all of the materials. He also confirmed that he had a copy of both the Court Book and written submissions with him.
The Court notes that the Registrar’s orders dated 10 December 2020 required the Minister to file and serve the Court Book by 14 December 2020. The Minister did not file the Court Book until 21 December 2020. Relevantly, 21 December 2020 was the day by which the applicant was required to file any amended application. The Court understands that the Minister prepares a large number of Court Books and, in the circumstances of this case, the time within which the Minister had to prepare and file the Court Book was quite short. Nonetheless, the Minister consented to this timeline.
This is relevant because the late filing of the Court Book arguably denied the applicant the opportunity to file an amended application with the benefit of having reviewed the materials in the Court Book.
The Court asked the applicant if he had had time to review the materials in the Court Book and if he was prepared to proceed on the hearing date.
The Court notes that:
(a)the applicant indicated that he was prepared to proceed with the hearing and he had reviewed the materials;
(b)the applicant had had one month to review the content of the Court Book prior to the hearing. The Court Book materials should not have been unfamiliar to the applicant in any event as he was provided or had provided most of the documents during the course of his visa application; and
(c)the Court (as explained below) gave the applicant the opportunity to raise any issues which had not been raised in his application (to ensure that the Court had “cured” any prejudice arising from the applicant not filing an amended application).
The Court further notes that any additional time the applicant may have needed would have been redundant as the judicial review application is, in any event (as is explained below), futile.
The Court is satisfied that the applicant has been afforded procedural fairness and had an adequate opportunity to prepare for his case and present his case – notwithstanding the late provision of the Court Book.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court is whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at its decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained to the Court that he “has baking qualifications and simply wants to put a new ‘nominator’ forward”. The applicant stressed that he is a skilled baker and his new employer wants to nominate him. When asked what “mistakes” were made by the Tribunal, the applicant submitted that the Tribunal should have put the “new nominator” in the application.
For the reasons addressed below, the applicant’s oral submissions do not identify jurisdictional error. While the Court does not doubt that the applicant is a skilled baker and that a new nominator is now willing to sponsor him, this does not assist him in establishing jurisdictional error before this Court.
CONSIDERATION
Judicial Review Application
In effect, the sole ground of review (and the applicant’s particulars) raises two “grounds of review”:
(a)the Tribunal failed to take into account the applicant’s age, qualifications and experience as a baker and the English language competency; and
(b)the Tribunal failed to take into account the applicant’s evidence that he had an employer who was prepared to nominate him (as per, the first, fourth and fifth particulars).
The Court will address each of these issues below.
In relation to the second particular, the Court in not unsympathetic. It accepts that the sponsor’s failure to appeal the nomination refusal was not a matter within his control and that the nomination application was refused through no fault of his own. However, this does not change the fact that the applicant was required to meet the relevant visa criterion. The sponsor’s failure to seek review does not constitute jurisdictional error.
In relation to the third particular, the applicant did not meet all the requirements for the visa. That is why the visa was refused. The applicant did not have an approved nomination at the time of the decision. On that basis, the Tribunal was required to refuse the visa.
Turning to the applicant’s argument that the Tribunal failed to take into account his age, qualifications and experience as a baker and the English language competency, the Court accepts that the Tribunal did not consider these factors or the evidence provided in support of them. The Court also accepts that the applicant’s age and his English language competency were criterion that he was required to satisfy: the Regulations, cls 187.231 and 187.232.
Despite this, it was unnecessary for the Tribunal to consider these factors when, as indicated by the delegate’s decision and the s 359A invitation to comment, the critical issue before the Tribunal was whether the applicant met cl 187.233.
It did not matter whether or not the applicant met the other criteria. This is so because, if the applicant did not meet cl 187.233, the Tribunal was required to refuse the visa. It had no discretion to waive this requirement. It was unnecessary for the Tribunal to consider the applicant’s age, qualifications and experience as a baker and the English language competency in circumstances where none of these matters had any relevance to whether he was the subject of an approved nomination.
Accordingly, there is no error in the Tribunal not taking into account the applicant’s age, qualifications and experience as a baker and the English language competency in determining whether he met cl 187.233.
In relation to the applicant’s argument that the Tribunal did not take into account his statement that he had another employer willing to sponsor him and nominate him, this is incorrect. The Tribunal extracted in full the applicant’s statement in response to the invitation to comment, explained to him why a new nomination from a different employer would not satisfy the relevant requirements and advised him that the Tribunal would not delay the application for review for this reason alone.
The Tribunal’s explanation that it did not matter whether the applicant had a new employer willing to nominate him was correct. The nomination had to be the nomination that the applicant had identified in his visa application. A new nomination could not be substituted. As explained in Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88] and [90] (“Singh”):
88…In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
…
90. The identification of this as a criterion for the validity of a visa application is important in the scheme. The appellant’s construction deprives the criterion of its intended operation as a criterion of validity because it contemplates further nominations can be filed and can subsequently satisfy cl 187.233(1). An examination of the nature and range of matters set out in reg 5.19 discloses an intention that only very particular positions of employment, with a specified set of attributes, which are to be verified through the mechanism of a ministerial approval of an employer nomination made at the time of application, are intended to allow a visa applicant to secure a visa of this kind. The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
(Emphasis added)
It did not matter that the applicant had another employer willing to nominate him. The criterion required the sponsor (and the nomination) identified and declared in the visa application to be approved. It was not. The Tribunal was correct in finding that the applicant did not, and could not, meet cl 187.233.
The Tribunal did take into account the applicant’s statement about his new employer. Ultimately, that was irrelevant and could not assist the applicant. The Tribunal did not “deprive” the applicant of any opportunity. It came to the only decision open to it.
The applicant’s oral submissions referred again to a “new nomination”. As highlighted by Singh, a new nomination cannot assist the applicant. That is, even if the Court was satisfied there was a jurisdictional error and that a new nomination would be forthcoming, the applicant could not be successful on remittal. He would still fail to meet the criteria as the “new nomination” could not assist him. The application is thus futile.
The judicial review application fails to identify any jurisdictional error and is, accordingly, dismissed.
Applicant’s Affidavit
The applicant’s affidavit sworn 13 November 2020 provides factual background to the applicant’s employment with the sponsor and his employment at a different employer after the nomination was refused. This factual background does not identify jurisdictional error.
At [9], the applicant (in effect) repeats his ground of review as articulated in the judicial review application. For the reasons given above, no jurisdictional error arises.
The final two paragraphs resemble pleas for relief. In the absence of jurisdictional error, the Court cannot assist the applicant.
The applicant’s affidavit fails to identify any jurisdictional error.
CONCLUSION
The applicant has failed to identify any jurisdictional error in the Tribunal’s decision. The Court is otherwise unable to identify any jurisdictional error.
The application, accordingly, is dismissed.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 20 January 2021
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