FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2014] FCA 1209

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the first respondent’s costs of the application for leave to appeal.

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

REASONS FOR JUDGMENT (Revised from Transcript)

1    This is an application for leave to appeal from the orders of a judge of the Federal Circuit Court of Australia delivered on 11 June 2014, dismissing an application to review a decision of the Migration Review Tribunal (the Tribunal) dated 25 March 2014 pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules).

Background

2    The applicant is a male citizen of India. He applied for an Employer Nomination (Residence) (Class BW) visa on 20 October 2011 on the basis of his proposed employment in the position of ‘Cook’. The position had been nominated for approval as an approved appointment under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

3    At the time of the visa application, Class BW contained two subclasses. As the nominated position for which the visa was sought was the subject of an employer nomination pursuant to reg 5.19(4) of the Regulations the relevant subclass was subclass 857.

4    On 9 January 2013, a delegate of the Minister refused to grant the visa because the applicant did not meet cl 857.221 of Sch 2 to the Regulations because the nomination lodged by the nominator, Hospitality Inspiration Group Pty Ltd (HIG), had been refused.

5    On 11 January 2013, the applicant applied to the Tribunal for review of the delegate’s decision.

6    On 18 February 2014, the Tribunal wrote to the applicant inviting him to attend a hearing. In the hearing invitation the Tribunal highlighted to the applicant that the issues at the hearing would include:

1.    Whether the applicant had been nominated by an employer at the time of application in accordance with reg 5.19(4); and

2.    Whether that appointment had been approved and was still available to the applicant at the time of the Tribunal’s decision.

7    On 13 March 2014, the applicant provided a statement to the Tribunal which set out, amongst other things, that his previous employer had promised to employ him but later breached the agreement, which was through no fault on the part of the applicant. He appears to have suggested there was a delay in processing the nomination application and in the interim the business closed down. The applicant claimed that he had found other employment as a cook and requested more time for his new employer to complete Labour Market Testing.

8    The applicant appeared before the Tribunal on 17 March 2014. At the hearing the applicant requested further time to enable him to communicate with his previous employer. In response to this, the Tribunal explained that any new nomination application would need to be made by the same employer in respect of the same position, and as the applicant had said that his previous employer had closed down and he was working with a different employer, the Tribunal was not prepared to allow the applicant more time.

Legislative framework

9    Subclass 857 visa was repealed by Sch 2 to the Migration Amendment Regulation 2012 (No 2) (Cth) (the Amendment Regulation), with effect from 1 July 2013. However, this was expressly only with respect to a visa applications made on or after 1 July 2013, pursuant to item 29 of Sch 2 to the Amendment Regulation, which inserted cl 102 of Sch 13 to the Regulations. It accordingly did not affect the applicant. Therefore, the visa applicant was required to meet the criteria for grant of a subclass 857 visa as they existed at the time of application on 20 October 2011.

10    Clause 857.221 requires that, at the time the decision:

The appointment mentioned in paragraph 857.213(a):

(a)    has been approved; and

(b)     has not been withdrawn; and

(c)     continues to satisfy the criteria for approval; and

(d)     is still available to the applicant.

Note See regulation 5.19 for the criteria for approval of the appointment.

The decision of the Tribunal

11    The issue before the Tribunal was whether the applicant met the criterion in cl 857.221(a), which required that, at the time of the decision, the relevant nominated appointment had been approved.

12    The Tribunal found that at the time of its decision there was no information before it to indicate that the relevant appointment had been approved, or that any appointment had been approved in respect of the applicant under reg 5.19.

13    Accordingly the Tribunal found that the applicant did not meet cl 857.221.

Proceedings before the Federal Circuit Court

14    By application filed on 9 April 2014, the applicant sought judicial review of the decision of the Tribunal dated 25 March 2014. The grounds of the application are set out in para [3] of the judgment of the primary judge.

15    The applicant’s grounds, in summary, were:

(a)    a lack of procedural fairness on the part of the Tribunal;

(b)    a misunderstanding on the delegate’s part with respect to the employer nomination; and

(c)    that there may have been an error on the Tribunal’s or the delegate’s part as the application took a long time.

16    The primary judge found that there was no error on the part of the Tribunal, that there was no discretion provided by the Migration Act 1958 (Cth) or the Regulations relevant to the applicant’s situation, and that the Tribunal was obliged to affirm the decision under review as the applicant could not satisfy all the requirements of cl 857.221.

17    Further, in relation to the applicant’s pleaded grounds, his Honour found:

(a)    there was no lack of procedural fairness, as the applicant attended a hearing at which he was invited to make oral submissions, and he also provided written submissions to the Tribunal.

(b)    the Tribunal properly understood and applied the visa criteria; and

(c)    there was no error resulting from any delay.

18    His Honour found that none of the grounds identified any jurisdictional error and that no arguable case was raised by the applicant. His Honour dismissed the application, pursuant to rule 44.12(1)(a) of the FCC Rules.

Application to the Federal Court of Australia

19    As previously mentioned, this is an application for leave to appeal. The principles applicable to an application for grant of leave to appeal from an interlocutory judgment are well established: the applicant must show there is sufficient doubt as to the correctness of the judgment below to warrant review and further that, if the judgment below is assumed to be wrong, substantial injustice would result if leave to appeal were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.

CONSIDERATION

20    The application for leave to appeal was filed with an affidavit made by the applicant which was read in support of his application. The affidavit includes various annexures, comprising correspondence and submissions relied upon by the applicant in support of his proposed appeal. However, nowhere can I find in any of this material any grounds of appeal in conventional form which attempt to identify error on the part of the primary judge. There are, however, various points that emerge from the applicant’s written material.

21    First, it is suggested by the applicant that the Tribunal did not give either the applicant or the employer who lodged the nomination, HIG, enough time to make submissions. There is no substance to this complaint. As the primary judge pointed out, the employer did not apply for review of the decision to refuse its nomination. So far as the applicant is concerned, he attended a hearing before the Tribunal and he made oral submissions to it. The applicant also filed written submissions in support of his application for review.

22    The applicant also suggested in his written material, and again during oral submissions, that he was taken by surprise, perhaps even ambushed, at the show cause hearing and was effectively denied the opportunity to properly argue his case. I do not think there is any substance to this submission either. The Minister’s Response filed 22 April 2014, which was sent to the applicant by post on 24 April 2014, made clear that the Minister contended that there was no arguable case of jurisdictional error on the part of the Tribunal raised by the applicant. Moreover, the letter to the applicant from the Minister’s solicitors, dated 24 April 2014, included the following information:

The Response opposes your application, and we may ask the Court to hold an immediate show cause hearing under Rule 44.12 of the Federal Circuit Court Rules 2001 to address the matters raised in the Response. At the show cause hearing we will ask the Court to dismiss your application. The Court may require you to provide reasons to explain why your application should not be dismissed at that time. These might include properly particularised grounds of judicial review, reasons why an extension of time should be granted, or evidence that your application is not out of time.

23    In oral submissions, the appellant raised various other matters, all of which were concerned with matters that could have no bearing upon the outcome of his application before the Tribunal, the proceeding before the primary judge or the application for leave to appeal. Amongst other things, the applicant claimed to have been exploited by his employer. While one may have sympathy for the applicant and the predicament in which he finds himself, that does not provide an answer to the fact that the applicant’s application for judicial review had no reasonable prospects of success given the effect of the relevant Regulations.

24    In the result, I am satisfied that the primary judge’s decision is not shown to be attended by any doubt.

Disposition

25    The application for leave to appeal will be dismissed and there will be an order that the applicant pay the first respondent’s costs of the application for leave to appeal.

Associate:

Dated:    12 November 2014