Yeap v Minister for Immigration

[2016] FCCA 1173

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEAP v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1173

Catchwords:
MIGRATION – Visa – employer nomination visa – whether person who will employ is person who made the nomination – Minister not having approved nomination – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 476 & 478(a)

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

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: OON LING YEAP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 233 of 2015

Judgment of: Judge Heffernan

Hearing date: 4 April 2016

Date of Last Submission: 4 April 2016

Delivered at: Adelaide

Delivered on: 24 May 2016

REPRESENTATION

The Applicant: In person

Solicitors for the Respondents: Ms D Tucker for the Australian Government Solicitors

ORDERS

1. The Application filed 26 June 2015 is dismissed.

2. The name of the second respondent is amended to read the ‘Administrative Appeals Tribunal’.

3. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 233 of 2015

OON LING YEAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) seeking review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) made on 1 June 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (‘the visa’). The applicant represented herself before this Court. The applicant relies on four grounds of application as follows:

   “1.The Migration Review Tribunal (MRT) member ignored relevant materials supplied by the applicant(s). While there was attempts (both written and oral) persuading the member that Adtrans Automotive Group Pty Ltd (AAG) and Adtrans Group are associated entities, the member kept insisting these companies are different as they have separate ABNs. Section 500 AAA of the Corporations Act 2001 supports that the companies are associated entities operating under one umbrella and therefore refer to the same entity. A chart showing how these companies relate to one another was also supplied.

   2.The MRT failed to see the fact that the February 2014 contract states that Alexis reports to the “Dealership Accountant, Stillwell Ford” in the nominated position.  The letterhead of the contract includes the logo of Stillwell Ford, the website address of Stillwell Ford and the company name and ABN of AAG.  As such, the requirement that Alexis reports to the Dealership Accountant is actually consistent with her employment by AAG.

   3.In addition, the MRT also failed to note that out of the two contracts in regards to the employment of Alexis Yeap, the fact that the agreement executed with the nominee on the 13^th June 2014 superseded the earlier agreement dated 18^th February 2014 by the implication of law and it was clearly mentioned in the subsequent agreement/contract that offer was for the employment as an Accountant for AAG.

   4.The MRT did not take into consideration that in the advertisement dated December 2013 in respect to the nominated position clearly refers in the opening paragraph to “Adtrans - A division of AP Eagers Ltd”.  AAG ran the advertisement in its aim to recruit graduate accountant(s) to fill those position(s) in the numerous subsidiaries in which it directly controls and operates.”

2. On 31 July 2015, an order was made by the Registrar directing the applicant to file and serve an Outline of Submissions 10 business days prior to her hearing.  No outline has been received.

Background

1. The applicant received an offer of employment on 18 February 2014 on the letterhead of Stillwell Ford, Adtrans Automotive Group Pty Ltd (ABN 83 007 866 917) to work for ‘A P Eagers SA Car Division’ as a graduate accountant.[1]  The letter advised that the position would require her to report to the ‘Dealership Accountant, Stillwell Ford’.  On 20 May 2014, Adtrans Automotive Group P/L (ABN 83 007 866 917) made an application for approval for employer nomination for a permanent appointment for the applicant, Ms Yeap.[2]  Ms Yeap applied for the visa on 30 May 2014.[3]  The visa she applied for had one subclass, namely subclass 187 (Regional Sponsored Migration Scheme).  On 13 June 2014, Ms Yeap was made an offer of employment by Adtrans Group (ACN 008 129 477) (‘the second offer’).  The second offer of employment was for the position of Accountant, Adtrans Automotive Group P/L t/as Stillwell Ford.  On 31 July 2014, the nomination lodged by Adtrans was refused.[4]  The refusal of this nomination was information adverse to the visa application made by Ms Yeap.  Accordingly, Ms Yeap was sent an invitation to comment on this information.  That invitation informed her of the adverse information and its consequences under the heading, “Action Required”.[5]  The invitation advised her of two options she could take in response to the adverse information.  Those options were: to withdraw the application; or, to maintain the application, allow it to be refused, and appeal the decision to the Tribunal.

   [1]     Court Book (‘CB’) pp 30-33.

   [2]     Supplementary Court Book (‘SCB’) pp 1 – 7.

   [3]     CB p 34.

   [4]     CB p 54.

   [5]     CB p 46.

2. On 12 August 2014, the applicant’s migration agent wrote to the delegate and advised that an application for review in relation to the nomination refusal had been lodged with the Tribunal, and in those circumstances, invited the delegate to refuse Ms Yeap’s application for a visa so that she could seek review of that refusal before the Tribunal, and in effect, link her application for review to that of Adtrans.[6]

   [6]     CB p 49.

3. Accordingly, the applicant’s visa application was not withdrawn and it was refused by the delegate on 3 December 2014.[7]  On 16 September 2014, the applicant applied to the Tribunal for review of her visa refusal.  The applicant’s migration agent wrote to the Tribunal on 22 September advising that they intended to provide no further information to the Tribunal in support of the application.[8]

   [7]     CB pp 53-55.

   [8]     CB p 58.

4. The Tribunal sent Ms Yeap an invitation to appear to give evidence and present arguments on 31 March 2015.  The matter was listed for hearing on 21 May 2015.  The applicant responded to the invitation indicating that she would appear with her migration agent.  The Tribunal hearings for both applicants’ review of the visa application refusal, and the nomination refusal review, were held together.  I should note at this point that the migration agent for the proposed employer and the applicant was the same person.

5. On 1 June, the Tribunal made separately published decisions:

   a)To refuse the nomination review; and

   b)Affirm the decision of the delegate and to refuse the visa review and affirm the decision of the delegate in relation to the visa.

6. On 20 June 2015, Ms Yeap applied for judicial review to this Court.  Her grounds have been noted above. 

Tribunal hearing

1. Ms Yeap gave evidence before the Tribunal. The Tribunal also heard evidence from a number of witnesses on behalf of Adtrans. The Tribunal identified that the applicant needed to meet the criteria for the (Class RN) visa. Ms Yeap’s application was of course subject to the regulations for subclass 187. The Tribunal considered cl.187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly, that clause set out the following:

   “(1)The position to which the application relates is the position:

   (a)nominated in an application for approval that seeks to meet the requirements of:

   (i)     subparagraph 5.19(4)(h)(ii); or

   (ii)     subregulation 5.19(4) as in force before 1 July 2012; and

   (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)The person who will employ the applicant is the person who made the nomination.

   (3)The Minister has approved the nomination.

   (4)The nomination has not subsequently been withdrawn.

   (4A)Either:

   (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (5)The position is still available to the applicant.

   (6)The application for the visa is made no more than 6 months after the Minister approved the nomination.”

2. These requirements are time of decision criteria, meaning that they are criteria that need to be met by the applicant at the time that the decision is made. The Tribunal was not satisfied that the applicant met cl.187.233(2), namely, that the person who will employ the applicant is the person who made the nomination. It was also not satisfied that she met the criteria of cl.187.233(3) of the Regulations, namely the requirement that the Minister has approved the nomination. The Tribunal put to her that she would not be able to satisfy that criterion and the Decision Record notes that the applicant acknowledged this.[9]

Submissions

[9] CB p 15 at [15].

Applicant’s submissions

1. The applicant submitted that at the time of the Tribunal hearing, she understood that if the Adtrans review failed, then her own review would also fail.  She understood that the issue with respect to the Adtrans review was whether there was the necessary relationship of direct control between the employer and the nominator.  She submitted that the Tribunal should have found that the necessary relationship did exist and should have approved the nomination.  She submitted that if the fact that the nomination had not been approved by the Minister was of such importance to her application, it should have drawn her attention to that fact.  I note however, that this was a matter specifically relied on by the delegate in refusing her application.[10]  The applicant was on notice of this issue.  The transcript of the Tribunal hearing has not been placed before the Court and so it is not possible to see in precise terms what matters were raised with the applicant.  I am satisfied however, that by virtue of the findings of the delegate and the matters referred to in paragraph 15 of the Tribunal Decision Record, that the applicant was properly on notice of this issue.[11]

   [10]    CB p 54.

   [11] CB p 15 at [15].

Respondent’s submissions

1. The first respondent submits that the grounds of review do not identify any jurisdictional error on the part of the Tribunal. It submitted that there is no suggestion that the Tribunal had misinterpreted cl.187.233(2) of the Regulations. It simply found as a matter of fact that they were not the same ‘person’[12] and accordingly that cl.187.233(2) had not been met. It submits that the decision of the Tribunal is consistent with the relevant policy of the Department, as articulated in the Procedures Advice Manual 3 (‘PAM3’):

   “This essentially means that a nominator cannot nominate a position that exists within the business activities of entities associated (s.50AAA of the Corporations Act) or related (s.50 of the Corporations Act) to them under the Direct Entry stream. The nominated position must be within the business activities of the nominator.”

   [12] ‘Person’ in this context extends to a body corporate under s.2C of the Acts Interpretation Act 1901 (Cth).

2. It submitted that once it determined that the nomination decision should be affirmed, the Tribunal inevitably had to refuse the application because the Minister had not approved the nomination (cl.187.233(3)).

Consideration

1. The applicant raises four grounds.  Those grounds relate to the nomination decision, which is not the decision which is under review here.  Indeed, the applicant had no standing to challenge the Tribunal’s nomination decision.[13]

   [13] Section 478(a) of the Migration Act.

2. The arguments postulated in her grounds are directed to the question of the relationship between Adtrans Group Pty Ltd, Adtrans Group, Stillwell Ford, and A P Eagers, and she submits that there is the necessary relationship of ‘direct control’ between the employer and the nominator. However, as the first respondent submits, the test under cl.187.233 shows that the criterion she had to satisfy, was whether the employer and the nominator are in fact the same person or body corporate.

3. The approach taken by the Tribunal does not appear to have been incorrect. It specifically considered cl.187.233(2) and found as a matter of fact that the employer was not the same person as the nominator. This finding was open to it on the evidence. If it was an error of fact, it was an error within jurisdiction. It is not permissible for this Court to substitute its own view of the facts for that of the Tribunal.[14]  There was nothing unreasonable in the approach taken by the Tribunal,[15] or inherently illogical or irrational in either the approach it took to the factual findings, or the findings of fact that it made.  There was no jurisdictional error in the finding made by the Tribunal.

   [14]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

   [15]    Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

4. As a consequence of the rejection of the review by Adtrans, there was an insurmountable hurdle faced by the applicant. Her nomination had not at any time been approved by the Minister. Having made that decision to reject the Adtrans review, the Tribunal inevitably found that the applicant could not meet cl.187.233(3). No other finding was reasonably open on the facts. The success of the applicant’s visa application was dependant on the outcome of the Tribunal decision relating to the nomination. At no stage had the Minister approved the nomination. This was an essential criterion.

5. Unsurprisingly, given the applicant was not represented in these proceedings, and given the complexity of the requirements under the Regulations, much of the applicant’s argument was directed towards challenging the basis of the decision in the review application made by Adtrans. This was not the decision she reviewed. Her grounds made no complaint with respect to the decision made by the Tribunal in her case about the Minister not having approved the nomination at any stage. Her grounds and submissions made no complaint about the finding by the Tribunal in her case that the employer was not the same person who made the nomination. Her argument and her grounds complain about the fact that the Tribunal did not accept that there was a relationship of direct control between the nominator and the employer.

6. This is an unfortunate matter. From the applicant’s perspective, she was offered a job by an employer and she understood that that employer would undertake all necessary steps for nomination approval. The employer appears to have attempted in good faith to comply with the necessary requirements. She was clearly valued by her employer who appeared to have supported her during the Tribunal process. Nonetheless, having applied for the visa, she was required to satisfy the conditions set out in the Regulations. Through no fault of her own, she was unable to do so. Given those criteria were mandatory, the Tribunal had no alternative but to affirm the decision of the delegate. This Court cannot review the merits of the matter, or substitute its own view of the facts, or what might seem fair, for that of the Tribunal. The question for this Court is confined to whether or not the Tribunal committed a jurisdictional error in making the decision that it did. I am not satisfied that the applicant has demonstrated that the Tribunal fell into jurisdictional error, either in the manner in which it conducted the proceedings, or the decision that it made.

7. It seems to me that this matter would be an appropriate matter for the Minister to give consideration under s.351 of the Act as to whether it is in the public interest to substitute the decision of the Tribunal with a decision that is more favourable to the applicant. That is a matter for the applicant to pursue if she sees fit. It is not appropriate that I identify a list of reasons either for or against the exercise of the Minister’s discretion in that regard.

8. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 24 May 2016