Subramaniam v Minister for Home Affairs
[2021] FCCA 355
•18 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Subramaniam v Minister for Home Affairs [2021] FCCA 355
File number(s): MLG 2651 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 18 February 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Temporary Business Entry Class UC visa – Applicant did not satisfy clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (Cth) – failure to secure an approved nomination by an approved standard business sponsor – no jurisdictional error established – application dismissed with costs. Legislation: Migration Regulations 1994 (Cth) cl 457.223 of Schedule 2
Migration Act 1958 (Cth) ss 368A(1)(a)
Migration Legislation (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth)
Cases cited: Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458
Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096
Number of paragraphs: 22 Date of hearing: 18 February 2021 Place: Melbourne Advocate for the Applicant: In person Solicitor for the Applicant: None Solicitor Advocate for the Respondents: Ms Stone Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2651 of 2018 BETWEEN: GOWTHAMAN SUBRAMANIAM
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
18 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The Application filed by the Applicant be dismissed.
2.The Applicant pay to the Minister’s costs fixed in the amount of $4,000.
3.These orders take effect and become operative on the day written reasons are published.
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE, REVISED FROM THE TRANSCRIPTJUDGE BLAKE:
This is an application for review of a decision (‘Application’) made by the Administrative Appeals Tribunal (‘Tribunal’) on 8 August 2018. The Application in this Court was filed on 4 September 2018.
The Application arises from an application by the Applicant to be granted a Temporary Business Entry (Class UC) visa (‘the visa’). The application for the visa was made on 20 September 2016. The Applicant is an Indian citizen. He arrived in Australia in May 2014.
The Applicant applied for the visa on the basis of a sponsorship by an entity known as BK’s Franchising Australia Pty Ltd (‘the business’). On 17 February 2017, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant. In that letter, the Department advised the Applicant that the business did not have an approved nomination for him at this time. The Applicant was further advised that his visa application was unlikely to be successful. Further, the Applicant was advised to respond to the content of the letter received from the Department (see Court Book page 46).
On 17 August 2017, a further letter was sent by the Department to the Applicant informing him again that the business did not hold an approved nomination. He was again told that the visa application was unlikely to be successful (see Court Book pages 50 – 53).
On 15 September 2017, the Department refused the application for the visa. The Department was not satisfied, among other things, that the Applicant had met the requirements of clause 457.223(4)(a) of Schedule 2 of the Migration Regulations 1994 (‘the Regulations’).
The Applicant sought a review by the Tribunal, and on 8 August 2018, the Tribunal affirmed the decision not to grant the Applicant a visa.
As an applicant for the visa, the Applicant was required to satisfy the criteria set out in Part 457 of Schedule 2 of the Regulations. Relevantly, for the purposes of the present matter, clause 457.223 required the Applicant to be the subject of an approved nomination by an approved standard business sponsor. Clause 457.223(4)(a) relevantly stated:
(4)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;
Following the receipt of the Applicant’s application, the Tribunal invited the Applicant to attend a hearing set down for 20 July 2018 (see Court Book at 79). The Applicant’s representative telephoned the Tribunal on 13 July 2018 (see the phone record at Court Book at 82). The Applicant’s representative inquired how to request an adjournment. He also asked for information about the nominator and was advised there was no active review for the nomination of sponsor.
Subsequently, on 19 July 2018, the Applicant's representative sent an email to the Tribunal in the following terms:
Our client only just instructed our office that he will not be attending the tribunal. He has preferred to have a decision made in the absence of his attendance. Please hand down the decision by email, so that I may forward it to our client.
Subsequently, on 23 July 2018, the Tribunal invited the Applicant to provide any additional submissions or documents by 30 July 2018. No response was received to that invitation.
The Tribunal made its decision on 8 August 2018, affirming the decision of the delegate. In its decision, the Tribunal found that the Department:
(a)Had refused the nomination by the business;
(b)Found there was no evidence that the Applicant was the subject of another approved nomination;
(c)Did not consider it appropriate to defer making a decision;
(d)Found the requirements of clause 457.223(4) were not satisfied; and
(e)Affirmed the decision of the delegate.
In the application for review today, the Applicant appeared before me unrepresented. In his Application documents, he says that he is not satisfied with the decision of either the Department or the Tribunal. Among other things, the Applicant claims that he was in the process of trying to obtain information and refers to a request for an adjournment. He also takes issue with what he says is an inconsistency or error with the notification decision and the date of the decision record.
Further, he has attached a document to his Application which sets out three grounds of review, which I understand to be as follows:
(a)In ground 1, the Applicant said that he did in fact have an approved standard business sponsor and was about to lodge a new nomination.
(b)In ground 2, the Applicant said that he deserves a second chance and that the nomination was refused due to his sponsor selling the business, which was a matter that he had no control over. The Applicant claims to be suffering from stress and says there should be some transition arrangements for applicants in his situation.
(c)In ground 3, the Applicant said that he could not get professional assistance or representation to enable him to present his claims properly, and that as a result, the Department misunderstood his case.
In submissions before me today, the Applicant also said that he did not know at the time of the application for the visa that the business could not sponsor him. He also said that he has been unable to get another company or business to sponsor him. That submission, it seems to me, cuts against and is inconsistent with what the Applicant has said in his Application documents i.e that he had an approved sponsor and was about to lodge a new nomination.
Dealing firstly with the issue of the adjournment raised by the Applicant in his Application documents, I have earlier in these reasons set out the communication received from the Applicant's representative. It was an inquiry about how to make an adjournment. There was never, however, any request for an adjournment. In fact, the opposite occurred. The Applicant's agent encouraged the Tribunal to reach its decision in the absence of the Applicant. Given the circumstances and the fact the Applicant was given until 30 July 2018 to provide additional submissions, this complaint does not, in my view, give rise to any jurisdictional error, or procedural unfairness.
The Applicant's complaint in relation to the decision record and notification does not give rise to jurisdictional error. Section 368A(1)(a) of the Migration Act 1958 requires the Tribunal relevantly to notify an applicant within 14 days, which occurred in this case. It does not give rise to a ground of complaint.
Turning then to the numbered grounds of review, ground 1 does not give rise to any jurisdictional error. The Applicant had the opportunity to put on material before the Tribunal and elected not to do so. Further, there was no evidence of the new nominator, and indeed the Applicant has confirmed today that there was no new nominator. He also elected not to appear before the Tribunal. In those circumstances, he cannot be heard now to argue that the Tribunal made an error by failing to take account of the fact that he had a new nominator.
It is difficult to understand clearly what is asserted in ground 2 of the Application document. The complaint appears to be that the Applicant should have been given an opportunity to arrange a new nominator, and he deserves a second chance, and that there should be some transitional arrangements for persons in his position.
In substance, and putting to one side for now the submission regarding an opportunity to arrange a new nominator, this is a complaint about the content of the regulatory scheme, and seemingly, the nomination scheme. Such a complaint does not give rise to jurisdictional error. The decision had already been made not to approve the business nomination of the Applicant. That was fatal to the Applicant's application. The Applicant was on notice about this. He did not provide evidence of any alternative nomination.
Ground 3 also does not give rise to any jurisdictional error. There are at least two matters to note in respect of this. First, the Applicant was represented by a professional migration agent. Second, a lack of legal representation of itself is not a reason to set aside the decision. Further, the Applicant elected to forgo his right to a hearing by his non-attendance. I am unable to discern any basis upon which the Applicant can claim to be misunderstood, in circumstances where he did not attend the Tribunal hearing, nor did he make submissions or produce evidence, despite having been given an opportunity to do so.
There is one further matter to take account of in relation to this case. It arises in relation to the Applicant’s claim, which he agitated before me today, that he should be given an opportunity to arrange a new nominator. The Migration Legislation (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) amended the Regulations on 18 March 2018. The result of that amendment is that there is no longer any subclass 457 visa. Accordingly, even if some error were able to be established, and I have found there is not, it would be futile to remit the matter because the Tribunal would be bound to affirm the decision under review, as the Applicant would not be able to satisfy clause 457.223(4), i.e., he cannot obtain a new nomination. In this respect, I refer to previous decisions of the Court; see Ansari & Ors v Minister for Immigration & Anor [2020] FCCA 458 at paragraphs [32] to [33], and Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096 at paragraphs [36] to [43].
It is difficult, and I said this to the Applicant, not to feel some sympathy for him, given he says he relied on his migration agent to assist him. While I have some sympathy for him, as I have indicated, the regrettable fact in this case is that the Applicant has not been able to point to any jurisdictional error. The application for review fails on that basis, and on the basis that I have outlined above. The Application is dismissed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 25 February 2021
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