Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCA 1057

FEDERAL COURT OF AUSTRALIA

Sood v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1057  

Appeal from:

Sood v Minister for Immigration & Anor [2020] FCCA 3504

File number:

NSD 10 of 2021

Judgment of:

PERRAM J

Date of judgment:

1 September 2021

Catchwords:

MIGRATION – application for leave to appeal from Federal Circuit Court decision dismissing application for review of Administrative Appeals Tribunal decision refusing working visa – where no approved business sponsor – where employer did not inform Applicant that sponsorship approval application withdrawn – whether jurisdictional error

Legislation:

Federal Court of Australia Act 1976 (Cth) s 24(1)(d), (1A)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) Sch 1 item 79

Division:

General Division

Registry:

New South Wales

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

11

Date of hearing:

12 August 2021

Counsel for the Applicant:

The Applicant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr K Eskerie

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 10 of 2021

BETWEEN:

ASHISH SOOD

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

1 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1. This is an application for leave to appeal from orders made by the Federal Circuit Court:  Sood v Minister for Immigration & Anor [2020] FCCA 3504. The case in that court concerned Mr Sood’s attempts to obtain a working visa, more formally, a Temporary Work (Skilled) (Subclass 457) visa. Mr Sood applied for this visa on 6 January 2017 and a delegate of the Minister refused the application. That conclusion was affirmed by the Administrative Appeals Tribunal (‘the Tribunal’). Mr Sood then commenced a proceeding in the Federal Circuit Court to quash that decision and to have the Tribunal redetermine his application. It was this application which the Federal Circuit Court dismissed and which is the subject matter of the present appeal.

2. The appeal in this Court is sought to be brought against an order which, by virtue of Federal Circuit Court Rules 2001 (Cth) r 44.12, is interlocutory. A grant of leave is therefore necessary before it may proceed: Federal Court of Australia Act 1976 (Cth) s 24(1)(d) and (1A). I am satisfied, given the consequences to Mr Sood, that if he has a reasonably arguable case for appeal then leave should be granted. This directs attention to what he proposes to argue on appeal if permitted to do so. In his written application he identified four errors. The first of these was that the Federal Circuit Court failed to hold that the Tribunal’s decision was afflicted by jurisdictional error; the second was that the Tribunal had not given Mr Sood justice; the third was that his employer had betrayed him (I interpolate – by withdrawing its own application to become Mr Sood’s ‘approved sponsor’); the fourth was that he had submitted all the paperwork required of him but even so the Department had made a one-sided decision.

3. I mean no disrespect to Mr Sood when I say that the second, third and fourth of these proposed grounds do not disclose viable grounds of appeal in this Court.  On appeal this Court lacks the authority to hold as a ground of relief that the Tribunal had not given him justice or to allow the appeal because he was betrayed by his employer.  Nor could a finding that the original decision maker had been one sided assist him when the decision under the microscope in the Federal Circuit Court was not that decision but the subsequent and fresh decision of the Tribunal to uphold it.

4. The first proposed ground does, by contrast, identify an error which if demonstrated could warrant this Court allowing the appeal.  I propose to treat the ground as a global attack on the correctness of the Federal Circuit Court’s view that none of the grounds he alleged in that court were entitled to succeed.

5. In the Court below Mr Sood contended that the Tribunal had made four errors.  These were that: (a) the Tribunal had failed to consider his review on compassionate grounds and had therefore made a jurisdictional error; (b) the Tribunal had not informed him that his employer had withdrawn its sponsorship of his employment; (c) the Tribunal had failed to assess his review application according to law; and (d) his employer had cheated him by withdrawing its sponsorship without his consent.

6. I think it is fair to say that propositions (a) and (d) cannot give rise to any successful contention which could have led the Federal Circuit Court to accede to his application for relief.  I do not think therefore that there is a basis for interfering with the Federal Circuit Court’s conclusions in relation to these two allegations.

7. Insofar as (b) is concerned it is useful at this point to note one of the criteria for the grant of a subclass 457 visa.  This is that, before the decision maker may grant the visa, they must first be satisfied of the existence of an approved business sponsor; that is to say, someone who had been approved by the Department and was willing to take the applicant on as an employee.  Originally an entity called Hua Lan Group (Aust) Pty Ltd (‘Hua Lan’) had agreed to be Mr Sood’s business sponsor and had sought such approval.  However, Hua Lan’s application for approval was refused and an application which it had sought for a review of that decision was later withdrawn.  By the time Mr Sood’s review application was heard in the Tribunal it was a fact that he did not have an approved business sponsor.

8. The Tribunal reasoned, in that circumstance, that it was not possible to issue Mr Sood the visa because he did not meet this qualifying requirement.   Returning then to his argument (above (b)) that the Tribunal had not informed him of the fact that the employer had withdrawn his sponsorship, this cannot help even if the allegation is presumed to be entirely correct.  It does not assist Mr Sood because it takes as its first step the proposition that Mr Sood does not have a sponsor and this inevitably means he is not entitled to the visa.  Whilst the reasons of the Federal Circuit Court are briefly expressed on this issue I do not think that it reached the wrong conclusion.

9. As to the argument that the Tribunal failed to deal with his review application according to law, the difficulty is that Mr Sood has not identified what this error might be.  Before this Court I invited Mr Sood to make any submissions he wished to make and he told me that he did not wish to say anything.  It is unclear to me whether he made any oral or written submissions in the Federal Circuit Court.  The brevity of that court’s treatment of the matter, which was limited strictly to a very brief discussion of the grounds of review, are consistent with no argument having been advanced in that court.  However, the fact that no argument was advanced in this Court means that it is not really possible to give this point any flesh.

10. The consequence of the foregoing is that the proposed notice of appeal does not enjoy any prospects of success and that is sufficient for leave to be refused.  However, there is an additional reason leave should be refused.  In practical terms, even assuming that Mr Sood succeeded in having the decision of the Tribunal set aside, changes to the law have the effect that there are no longer any circumstances in which his application for the visa could succeed. The critical fact is that after 18 March 2018 it is no longer possible for any employer to become an approved business sponsor for a proposed applicant for a subclass 457 visa.  This is the effect of the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth): Sch 1 item 79.  The practical impact of this is that Mr Sood will never be able to qualify for a subclass 457 visa and that any future proceeding in the Tribunal in respect of an application for such a visa can therefore never succeed.

11. In all of those circumstances, the application for leave to appeal will need to be refused with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.

Associate:

Dated:       1 September 2021