FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2018] FCA 779

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay to the first respondent the costs of and in connection with the appeal.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 13 December 2017, the appellants filed a notice of appeal in relation to the orders and reasons of the Judge of the Federal Circuit Court, made on 30 November 2017 and published as Kaur & Ors v Minister for Immigration & Anor [2017] FCCA 3169. Her Honour (the ‘primary judge’) dismissed the application for review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) affirming a decision of a delegate of the Minister (the ‘delegate’) not to grant the applicant a Regional Employer Nomination Permanent (Class RN) (Subclass 187) visa (the ‘Visa’).

2    Pursuant to the orders of Registrar of the Federal Court dated 12 January 2018, the appellants were to file and serve any written submissions on or before 11 May 2018. No written submissions from the appellants were filed or served.

BACKGROUND

3    On 17 July 2014, the first appellant (the ‘appellant’) applied for the Visa. The second, third and fourth appellants were included in the Visa application as members of the appellant’s family unit. The application for the Visa was sought by the appellant in the “direct entry stream”, to work in the nominated position of “Pastry Cook” with the sponsor Leonti Investment Pty Ltd (the ‘sponsor’).

4    In order to be granted the Visa, the appellant had to meet a range of criteria (see s 31(3) and s 65(1)(a)(ii) Migration Act 1958 (Cth) (the ‘Act’)), which included cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (the ‘Regulations’). Relevantly, cl 187.233 required that:

(1)    The position to which the application related was the position nominated in an application for approval of a nominated position under reg 5.19(4)(h)(ii) or reg 5.19(4) (as in force before 1 July 2012), and had to also be the position that was subject of the declaration required to be made as part of the Visa application (cl 187.233(1)).

(2)    The person who would employ the appellant be the sponsor in the application for approval (cl 187.233(2)).

(3)    The nomination had been approved by the Minister and had not been subsequently withdrawn (cl 187.233(3) and (4)).

(4)    The position was still available to the appellant (cl 187.233(5)).

(5)    The application for the Visa was made no more than six months after the date the Minister had approved the nomination (cl 187.233(6)).

5    On 19 February 2015, the Department wrote to the appellant, by email sent to her appointed representative, inviting her to comment on adverse information before it, being that the sponsor’s application for approval of a position under the direct entry stream in respect of the appellant had been refused. No response was received by the Department.

6    On 25 March 2015, the delegate refused to grant the Visa because the appellant did not meet the criterion in cl 187.233 of Sch 2 to the Regulations because the sponsor’s application for a nomination had been refused.

TRIBUNAL’S PROCEEDINGS

7    On 2 April 2015, the appellants applied to the Tribunal for review of the delegate’s decision, and provided a copy of the delegate’s decision with the application for review. The appellants appointed Mr Gargandeep Singh of Vision Overseas as their registered migration agent and authorised recipient pursuant to s 379G of the Act, providing his email address as gagan@visionoverseas.com.au.

8    On 12 April 2016, the Tribunal wrote to the appellants, by email to their representative at gagan@visionoverseas.com.au, pursuant to s 359A and s 359(2) of the Act, inviting them to comment and provide information in relation to information the Tribunal had received. That information was that on 8 April 2016, a differently constituted Tribunal had affirmed a decision of a delegate of the first respondent to refuse approval of the related nomination application made by the sponsor for the position for which the appellant was proposed to be employed. The Tribunal’s letter indicated that if comment or information was not received by 26 April 2016, the Tribunal may make a decision without taking any further action to enable the appellant to appear before it, and that the appellants would lose their entitlement to appear before the Tribunal to give evidence and present arguments. No response was received by the Tribunal.

9    On 29 April 2016, the Tribunal made a decision affirming the decision under review.

TRIBUNALS DECISION

10    The Tribunal found that the appellants had failed to respond to the Tribunal’s s 359A invitation of 12 April 2016 within the prescribed period (or at all), and that pursuant to s 359C, s 360(3) and s 393A of the Act, the appellants had lost their entitlement to a hearing and the Tribunal had no power to permit them to appear (at [9]).

11    The Tribunal considered whether to adjourn the review to allow the appellants additional time to provide further evidence, but found that it was not required to defer making its decision “indefinitely”, noting that the appellants were represented and that neither they nor their representative had provided any comments or response to the Tribunal (at [10]). The Tribunal therefore decided not to exercise its discretion to defer the review any further (at [11]).

12    The Tribunal found that the application for approval of the nominated position relating to the appellant made by the sponsor had been refused by a delegate of the first respondent on 8 December 2014, with that decision affirmed by the Tribunal on 8 April 2016; and that the appellant had failed to provide any evidence that there was an approved nomination made by the sponsor (at [17]). The Tribunal was consequently not satisfied that there was an approved nominated position in relation to the appellant as required by cl 187.233(3) (at [17]-[18]).

PROCEEDINGS IN THE FEDERAl circuit court

13    On 15 May 2016, the appellants lodged an application for judicial review of the Tribunal’s decision in the Federal Circuit Court. The application pleaded that the Tribunal’s decision was affected by jurisdictional error because:

(1)    the appellants were not given an opportunity to attend a hearing before the Tribunal;

(2)    the Tribunal failed to take into account the appellant’s employment with the Sponsor from July 2014 to March 2015; and

(3)    the Tribunal did not give the appellants time to lodge “new sponsorship of my new employment”.

14    On 30 November 2017, the matter came before the Federal Circuit Court for hearing. The appellant appeared in person with the assistance of a Punjabi interpreter. The primary judge delivered an ex tempore judgment the same day dismissing the application.

15    The primary judge found that the appellants had been invited by the Tribunal pursuant to s 359A and s 359(2) of the Act to comment on adverse information, and that the Tribunal’s invitation complied with the legislative requirements set out in the Act. The primary judge found that the appellants did not respond to the invitation prior to the prescribed period or at all, and that pursuant to s 359C(1) and (2) of the Act the Tribunal was permitted to make a decision without taking further action to obtain information from the appellants; and that s 359C(1) and (2), and s 360(3) of the Act precluded the applicant’s from appearing before the Tribunal, or the Tribunal from offering the appellants a hearing (at [24]). The primary judge therefore found that the Tribunal did not fall into error proceeding as it did (at [25]).

16    In relation to ground two, the primary judge found that no error arose from the Tribunal failing to consider the period of the appellant’s employment with the Sponsor, as the issue on review was whether at the time of its decision there was an approved nomination in place in respect of the Visa application (at [26]).

17    In relation to ground three the primary judge found that the Tribunal was correct that it was not required to indefinitely defer its decision-making process, and in the circumstances the Tribunal’s failure to do so was not unreasonable (at [27]).

THE NOTICE OF APPEAL (FEDERAL COURT)

18    The notice of appeal contains a single ground alleging that the primary judge “applied a wrong principal of law and made an error” in relation to s 359A and s 359(2) of the Act, and incorrectly interpreted cl 187.233 and cl 187.233(1)(b) of Sch 2 of the Regulations. The first respondent submitted that the latter aspect of the ground (regarding cl 187.233 and cl 187.233(1)(b)) was not raised in the Court below and therefore requires leave, and there is in any case no error apparent in either the Tribunal or primary judge’s treatment of those provisions, with the consequences that the appeal is without any substantive merit and should be dismissed.

CONSIDERATION

Sections 359A and 359(2) of the Act

19    The Tribunal’s invitation of 12 April 2016 sought the appellants’ comment pursuant to s 359A of the Act on information before it that she was not subject to an approved nomination by the Sponsor. That information was, self-evidently, information which would (and was) the reason for affirming the decision under review. The invitation complied with the legislative requirements as it:

(1)    Set out the particulars of the information, its relevance to the review and invited the appellants to comment in writing: s 359A(1) and s 359B(1)(b).

(2)    Was given to the appellants’ representative as their authorised recipient, as required by s 379G of the Act, and was given to the authorised recipient by email, being one of the methods permitted by s 379A(5) and as per s 359A(2)(a) of the Act.

(3)    Specified the period of time in which the appellants were required to respond to the information being the prescribed period of fourteen days from when the invitation was received: s 359B(2) of the Act read with reg 4.17 of the Regulations.

20    The appellants did not respond to the invitation prior to the expiry of the prescribed period, or at all.

21    In such circumstances, s 359C(1) and (2) of the Act applied, and the Tribunal was permitted to make a decision on the review without taking any further action to obtain the information or the appellant’s comment or response. Further, as s 359C(1) and (2) applied to the appellants, s 360(3) provided that in such circumstances the appellants were not entitled to appear before the Tribunal. Under s 363A, the Tribunal does not have the power to permit a person to do something they are not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise. Accordingly, through the operation of s 360(3) and 363A, the appellant’s failure to respond to the s 359A invitation precluded the Tribunal from offering the appellants a hearing; see, Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 at [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498.

22    As the appellants failed to provide a response and information as requested by the Tribunal within the prescribed period, they lost their right to appear before the Tribunal to give evidence and present arguments relating to the review application. The first respondent submitted that there is no error on the part of the Tribunal in proceeding as it did, nor in the primary judge finding that the Tribunal had not fallen into error in doing so. I accept this submission.

23    Accordingly, this aspect of the appellants’ ground has no merit.

Clause 187.233 and 187.233(1)(b) of Schedule 2 of the Regulations

24    The appellants did not allege any error in the Tribunal’s interpretation of cl 18.233 and cl 187.233(1)(b) of Sch 2 of the Regulations before the Federal Circuit Court. The appellants accordingly require leave to raise this aspect of their ground of appeal.

25    In my view, this ground has no merit, putting aside whether any reason exists for it not being raised previously in the Federal Circuit Court. Clause 187.233 is clear on its terms. It relevantly required, in summary, that the position identified by the appellant in her Visa application be nominated in an application for approval which had been approved or not subsequently withdrawn. In circumstances where that application for approval had been refused by a delegate of the first respondent earlier, and affirmed on review by the Tribunal, it is difficult to see how the Tribunal could be said to have incorrectly found that the appellants did not meet cl 187.233.

26    As to cl 187.223(1)(b), it provides that:

The position to which the application relates is the position… 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.

27    The relevance of this subparagraph of cl 187.223 to the appellants’ circumstances is not apparent, and it is difficult to apprehend which aspect of the Tribunal’s reasons could be said to have incorrectly applied it. No suggestion has ever been made that the position to which the application relates was not the position to which the declaration in the Visa application related.

28    To the extent that the appellants seek to rely on a subsequent offer of employment to the appellant and sponsorship of that employer (as suggested in her affidavit before the Federal Circuit Court), it does not advance their case. Clause 187.223 (and specifically cl 187.223(1)) requires that the relevant position be the position in respect of which the Visa application was made, and to which the declaration in the Visa application was made. The application for nomination of that position was refused (and the decision to refuse it affirmed), and as expressly found by the Tribunal, there was no evidence that there was any approved nomination made by the Sponsor. Clause 187.232(1)(a) requires the position to which the Visa application relates be the one nominated in it, and it cannot be substituted for another later.

CONCLUSION

29    For the above reasons, I will order that:

(1)    The appeal is dismissed.

(2)    The appellants pay to the first respondent the costs of and in connection with the appeal.

Associate:

Dated:    28 May 2018

SCHEDULE OF PARTIES