Wadhwa v Minister for Immigration

[2015] FCCA 1409

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADHWA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1409

Catchwords:
MIGRATION – Judicial review – Migration Review Tribunal – Regional Employer Nomination (Permanent) (Class RN) visas – whether nomination for position to which the visa application related had been approved – whether applicant met criteria for visa – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.359(2), 359C(1), 360(2)(c) and (3), 474, 476

Migration Regulations 1994 (Cth), sch.2, cl.187.233(3)

Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

First Applicant: SANDEEP KUMAR WADHWA

Second Applicant: MANVI BAGGA

Third Applicant: VANSH WADHWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 392 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Perth

Delivered on: 29 May 2015

REPRESENTATION

For the Applicants: The First Applicant in person, and by leave for the Second and Third Applicants

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Spark Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 392 of 2014

SANDEEP WADHWA

First Applicant

MANVI BAGGA

Second Applicant

VANSH WADHWA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding commenced on 5 December 2014 by the applicants filing an application (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review of a decision of the Migration Review Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 26 November 2014 (see Court Book (“CB”) 88-91). The Tribunal Decision affirmed a decision made on 20 February 2014 by a delegate (“Delegate’s Decision” (at CB 73-79) and “Delegate” respectively) of the first respondent (“Minister”) to refuse each applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“Regional Employer Visa”).

Factual and procedural background to the Judicial Review Application

1. The factual and procedural background to the Judicial Review Application is as follows:

   a)the first applicant, Mr Wadhwa, is a citizen of India. Mr Wadhwa applied for the Regional Employer Visa on 6 January 2013: CB 1-14. Mr Wadhwa’s wife and son (the second and third applicants) applied as members of Mr Wadhwa’s family unit (the Court notes that Mr and Mrs Wadhwa now also have a second infant child);

   b)included in the application for the Regional Employer Visa was a letter of employment offer from Mr Pankaj Arora offering Mr Wadhwa the position of accountant: CB 39. Mr Arora had lodged an application for a nomination under the Regional Sponsored Nomination on 4 January2013;

   c)on 20 February 2014 the Delegate refused the nomination by Mr Arora of Mr Wadhwa: CB 64-72;

   d)on 20 February 2014 the Delegate refused the grant of the Regional Employer Visa to Mr Wadhwa because the nomination by Mr Arora had been refused, and Mr Wadhwa did not therefore meet the requirements of cl.187.233(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”). The Delegate also refused the Regional Employer Visa applications for Mr Wadhwa’s wife and son on the basis that, as Mr Wadhwa did not hold the relevant visa, cl.187.311 of Schedule 2 to the Migration Regulations was not satisfied: CB 73-79;

   e)on 28 February 2014 Mr Wadhwa lodged an application to the Tribunal for review of the Delegate’s Decision: CB 80-82;

   f)under s.359(2) of the Migration Act on 2 September 2014 the Tribunal invited the applicants to provide information demonstrating that “the nomination to which your application relates has been approved, as required by cl.187.233(3)”: CB 85. The invitation specified that such information should be received by the Tribunal by 25 September 2014 and that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision without taking any further action to obtain the information, and that the applicants would lose any entitlement under the Migration Act to appear before the Tribunal to give evidence and present argument: CB 85; and

   g)by letter dated 22 September 2014 Mr Wadhwa responded to the Tribunal letter outlining his academic qualifications and his duties as an accountant at the WA Family Trust Australia Perth. No evidence of an approved nomination was provided: CB 86.

Tribunal Decision

1. In its consideration of the applicant’s claims the Tribunal in the Tribunal Decision said as follows:

   CONSIDERATION OF CLAIMS AND EVIDENCE

   8. The issue in the present case is evidence of an approved appointment.

   9. On 2 September 2014 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide the following information: “Information demonstrating the nomination for the position to which your application relates has been approved as required by cl.187.233(3)”.

   10. On 22 September 2014 the applicant responded to the Tribunal's letter and provided information about his qualifications, his work history in Australia and description of his work duties and responsibilities. The applicant did not provide information that was requested by the Tribunal in the s.359(2) letter.

   11. The Tribunal's invitation letter makes it clear that under the Act the applicant may lose entitlement to a hearing if the invitation is not complied with.

   12. The Tribunal acknowledges that the applicant has responded to the invitation within the prescribed period, however the Tribunal finds the applicant has not provide the particular information requested.

   13. Section 359(2) states that the applicant must provide 'the' specific information which has been requested. The Tribunal refers to the authority of Yang v MIAC where the Court held that the Tribunal did not have the power to invite the applicant to a hearing as he had failed to provide evidence that he had achieved the required IELTS score, as requested by the Tribunal in a s.359 invitation. This was so notwithstanding that the applicant had responded to the Tribunal's invitation within the specified period advising that he had booked a test and asking to be given a final opportunity to pass the test.

   14. The effect is that if a review applicant has no entitlement to a hearing and the Tribunal has proceeded to make a decision on the available evidence. [sic]

   Nomination of a position

   15. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

   16. In addition, this criterion also requires that:

   •   the person who will employ the applicant was the nominator in the application for  approval

   •   the nomination has been approved and has not been subsequently withdrawn

   •   the position is still available to the applicant, and

   •   the visa application was made no more than six months after the nomination of the position was approved.

   17. The Tribunal has had regard to the delegate's decision which was provide[d] by the applicant with his review application. The delegate found that on 20 February 2014 the nomination lodged by Arora, Pankaj being the nomination referred to in cl.187.233(1) was refused by the delegate of the Minister. The delegate found that as the appointment had been refused the criterion in cl.187.233(3) was not met.

   18. There is no evidence before the Tribunal that the nomination for the position to which the application relates has been approved, as required by cl.187.233(3). As a consequence the secondary visa applicants are also unable to satisfy the criteria for the visa class.

   19. Therefore, cl.187.233 is not met.

   20. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

   DECISION

   21. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

   CB 89-91.

Judicial Review Application and supporting affidavit

1. The grounds of application as set out in the Judicial Review Application are as follows:

   1.Same as affidavit

   2.Decisions to refuse regional employer sub class 187 Permanent Visa.

   3.Visa
   Nomination of a Position; my case officer Clara Nunez was not satisfied that I met relevant criteria for the grant of the visa. As I was not satisfied with her decision.

   i they believe I’m not an accountant or the position to which application relates is not the position. So why they have grant me 457 visa as an accountant in January 2009 for 4 years.

   (Transcribed from the original without amendment).

2. Mr Wadhwa filed a supporting affidavit on 1 May 2015 annexing “Annexure A” which comprised a mix of factual material and submissions as follows:

   Annexure A

   LIST OF AUTHORITIES

   As I have limited knowledge of law. According to my understanding my case officer Clara Nunez refused my application as I doesn't met criterion 187.233

   (3) Which says the minister has approved the nomination.

   I. I apply RCB application on 23/11/12 and get approval on 22/01/13 approx. Nomination and visa application apply in Jan 2013. On that Time WA & Associates was running good.

   2. In February 2014; I have to fly India and my father-in-law is a patient of Parkinson and he was critical condition in ICU in India. So we have to fly to visit him and apply for bridging visa B to leave and return to Australia. On 19th of February ; I personally visit 836 wellington street west Perth WA, hand all the document to Mr. Francois Langlois then he call to my case officer Clara Nunez regarding my bridging visa B and any progress in my application. Then on 19th of February 2014 I get my bridging visa B on the same time. Next morning on 20th February 2014 I get email from my case officer Clara Nunez notification of refusal of application. That was not fair enough. Less than 24 hours I get my application refusal.

   3. Then I apply for MRT on line lodgement on 28 Febuary 2014,then I received a letter from MRT on 1-12-2014 that my application to have decisions changed has been unsuccessful

   Consideration of evidence and facts

   4. When I apply for my application class RN contained one subclass: subclass 187 (Regional sponsored migration scheme). On the same time approx. …[name of person and business deleted]. When he apply the … [business] was running good after Sometime the … [business] was closed and he get approval of his subclass 187(regional sponsored migration scheme) in the year 2013. Still the … [business] is closed. It's a request from minister for immigration and border protection and federal circuit court of Australia and lawyers related to this case don't disclosed my name as, I have given you this information otherwise I will be in a problem.

   Experience

   5. I finished my degree bachelor of commerce (accounting) after that I joined the AR enterprises India as an accountant from june 2000 to 2007. After that I joined WA Family trust Australia Perth from 09 jan 2009 to 09 Jan 2013 (temporary resident sub class 457) work as an accountant. As I'm in Australia Perth from last 8 years approx ...

   Rules and law.

   6. I believe rules and law are same for everyone in Australia. I have same case as I have I given you evidence above. We are looking fair judgment from the federal circuit court of Australia.

Consideration

Jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.

2. The Court notes, and was at pains to explain to Mr Wadhwa during the hearing, that the issue was not his experience, or qualifications, or a general comparison of his circumstances with other visa applicants from overseas.

Tribunal hearing

1. The Court notes that, by reason of Mr Wadhwa’s failure to provide the information sought by the Tribunal on 2 September 2014 the applicants were not entitled to be heard by the Tribunal: Migration Act, ss.359(2), 359C(1) and 360(2)(c) and (3). But, even if the applicants had been heard it would have made no difference to the Tribunal Decision, because, as both the Tribunal Decision and these Reasons for Judgment demonstrate, the essential criterion for the grant of the Regional Employer Visa was never met.

2. Clause 187.223(3) of Schedule 2 to the Migration Regulations requires that the Minister have approved the nomination for the position to be filled by an applicant for a Regional Employer Visa. The only issue was, as the Tribunal correctly identified, whether there was Ministerial approval for the nomination for the position to be filled by Mr Wadhwa: CB 89 at [8].

Approval of nomination

1. There was no evidence before the Tribunal of Ministerial approval for the nomination for the position of accountant with Mr Arora which Mr Wadhwa sought to fill, and it was not, in any event, in dispute that no Ministerial approval was given.

2. The Tribunal correctly identified the applicable law, and the relevant issue, and applied an ultimately undisputed fact to determine that Mr Wadhwa (and hence Mrs Wadhwa and their child) did not meet the relevant criteria stated in cl.187.223(3) of Schedule 2 to the Migration Regulations. In those circumstances, the Judicial Review Application is a plea for impermissible merits review based on the applicants’ dissatisfaction with the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and no jurisdictional error arises with respect to the grounds of the application.

Conclusion and order

1. The Court has concluded that there was no jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

2. The Court will hear the parties as to costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 29 May 2015