Federal Court of Australia

Kaur v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 63

ORDERS

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal dated 10 May 2021 be treated as an appeal, with the grounds of appeal as set out in the Draft Notice of Appeal dated 10 May 2021, and the named applicants be referred to as the appellants.

2.    The application by the Appellants for an adjournment of the hearing of the appeal until after 15 April 2024 is refused.

3.    The appeal be dismissed.

4.    The Appellants pay the First Respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 10 May 2021, the appellants filed an application seeking leave to appeal against a decision of the then Federal Circuit Court of Australia made on 30 April 2021 in Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 876 (PJ).

2    The appellants are Indian citizens. The first appellant, Lovepreet Kaur, was the applicant for a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (Act). The second appellant, Chetan Kanda, is her husband, and the third appellant, Myra Kanda, is their daughter. Chetan Kanda and Myra Kanda were included on Ms Kaur’s visa application as members of Ms Kaur’s family unit.

3    The primary judge dismissed the appellants’ application for judicial review of a decision of the second respondent (Tribunal) made on 6 July 2020. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant Ms Kaur a Regional Employer Nomination (Permanent) (Class RN) visa, and which also had the consequence that the dependent applications made on behalf of Chetan Kanda and Myra Kanda were refused.

4    The appellants did not require leave to appeal from the decision of the primary judge and the appeal was filed within the prescribed time period. Accordingly, I have treated the application for leave to appeal as an appeal proper. At all times, the appellants have been self-represented.

5    For the reasons that follow, the appeal is dismissed with costs.

Procedural background and application for adjournment

6    As already noted, the appeal was filed on 10 May 2021. At that time, Ms Kaur filed two affidavits made by her, the first dated 7 May 2021 and the second dated 10 May 2021, as well as a draft notice of appeal. Until about a week ago, that is the only step that had been taken by the appellants in the appeal.

7    Although the appeal was filed on 10 May 2021, it was not allocated to my docket for hearing until 28 October 2022. The hearing of migration appeals in the Court involving self-represented litigants was delayed by the COVID-19 pandemic, and this is one of the appeals that was affected.

8    Notwithstanding the COVID-19 pandemic, orders were made by a Registrar of the Court on 17 May 2021 requiring the Minister to file and serve the material that was before the primary judge and also requiring the parties to file written submissions prior to the hearing date. In accordance with those orders, the Minister filed and served an affidavit of Corey Jade Antonowicz affirmed 19 May 2021 annexing the material before the primary judge. However, as no hearing date was set at that time, the obligation to file submissions did not immediately arise.

9    When the proceeding was allocated to my docket on 28 October 2022, I set the matter down for hearing on 30 January 2023, allowing time for the filing of submissions.

10    In mid-January 2023, the parties sought orders by consent vacating that hearing date for the reason that the appeal might have been affected by a then pending appeal before the Full Federal Court in the matter of Jasbir Singh v Minister for Immigration, Citizenship and Multicultural Affairs and Another (SAD51/2021). On 16 January 2023, I made orders by consent that adjourned the hearing pending the determination by the Full Court of that appeal. The Full Court delivered judgment in that matter on 7 August 2023: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 123 (Singh).

11    On 21 September 2023, I made orders listing the appeal for hearing on 2 February 2024. I also made orders that required:

(a)    the Minister to file and serve a written outline of submissions and any affidavit evidence to be relied upon at the hearing by 24 November 2023;

(b)    the appellants to file and serve a written outline of submissions and any affidavit evidence to be relied upon at the hearing by 8 December 2023; and

(c)    the Minister to file and serve any written outline of submissions in reply by 15 December 2023.

12    The Minister filed and served a written outline of submissions in accordance with that order. The appellants have not filed any submissions in accordance with that order.

13    The Court did not receive any communication from the appellants between 21 September 2023 and 29 January 2024. On Monday, 29 January 2024, my chambers sent an email to Ms Kaur at the email address that had been provided on the Court file, reconfirming that the hearing of the proceeding was listed for Friday, 2 February 2024.

14    On Tuesday, 30 January 2024, my chambers received an email from Ms Kaur stating:

… unfortunately the primary applicant Lovepreet Kaur had to go overseas to attend an urgent family matter, therefore I kindly request to adjourn this matter until 15th April, 2024.

15    Later that day, my chambers sent an email to Ms Kaur advising that any application to adjourn the hearing must be supported by an affidavit which gives evidence concerning:

(a)    when Ms Kaur learned that it would be necessary to travel overseas;

(b)    the reason that Ms Kaur has had to travel overseas; and

(c)    the date on which Ms Kaur travelled overseas,

together with evidence of the fact that Ms Kaur has travelled overseas, for example by annexing a copy of the airline tickets.

16    On Thursday, 1 February 2024, the Court received an affidavit made on 31 January 2024 in which Ms Kaur deposed as follows (with upper case typeface being converted into lower case):

1.    That I am the first and primary applicant for the judicial review, bearing: Case No-VID243/2021 and fixed for hearing on 2nd Feb 2024

2.    That I am currently overseas visiting my ailing mother. I departed Australia on 18th Nov, 2023 and I shall return on 15th April, 2024

3.    That due to this reason, I have requested for adjournment to a later date.

4.    That I have attached a copy of my air ticket as Annexure 1 and passport stamps as Annexure 2 with this affidavit as an evidence.

17    The annexures to the affidavit verified that Ms Kaur and her daughter Myra Kanda departed Australia for Canada on 18 November 2023.

18    Prior to the Court sending an email to Ms Kaur on 29 January 2024, the Court had received no communication from Ms Kaur that she had departed Australia, nor any application for an adjournment of the hearing listed for 2 February 2024. Further, as noted above, after filing the appeal on 10 May 2021, the appellants have taken no step in the proceeding.

19    Following the receipt of Ms Kaur’s affidavit, my chambers asked the Minister to advise whether the application for an adjournment was opposed. The Minister advised the Court that the application was opposed and, on 1 February 2024, the Minister filed and served an affidavit of Natasha Bosnjak, a solicitor employed by Mills Oakley (the solicitors for the Minister). The Minister opposes the application for an adjournment for the following reasons:

(a)    Orders were made on 21 September 2023 requiring the appellants to file and serve submissions and listing the matter for hearing on 2 February 2024.

(b)    Ms Kaur departed Australia on 18 November 2023.

(c)    The appellants were aware of the hearing prior to Ms Kaur’s departure, but have not taken any steps to communicate this with the Minister or the Court, nor to request an adjournment at an earlier stage or to make alternative arrangements.

(d)    The appellants have not filed any submissions or any other documents in this matter in accordance with the orders of the Court made on 21 September 2023.

(e)    Ms Kaur was on a bridging visa, which has now ceased and she will not be able to re-enter Australia without a visa.

(f)    The appeal has been before the Court for a number of years.

(g)    The appeal does not have any prospects of success.

(h)    Ms Kaur can appear at the hearing by Microsoft Teams or by telephone.

20    Following receipt of the email communication from the Minister, on 1 February 2024 my chambers sent a further email communication to Ms Kaur advising that, as the application for an adjournment was opposed by the Minister, the hearing would proceed on 2 February 2024 and Ms Kaur was invited to attend the hearing via Microsoft Teams on a link attached to the email. Ms Kaur was also advised that the Court would hear the parties with respect to the application to adjourn and, if the adjournment was refused, the Court would proceed to hear the appeal.

21    At the hearing on 2 February 2024, Ms Kaur appeared by audio link over Microsoft Teams. Ms Kaur repeated her request for an adjournment, submitting that she sought an opportunity to return to Australia to arrange legal representation in the proceeding. At that hearing, I refused the application for an adjournment until Ms Kaur returned to Australia for five principal reasons.

22    First, I do not accept that the application has been made with a sincere intention to prosecute the appeal. The application for an adjournment was not made until the Court contacted Ms Kaur by email on 29 January 2024 to reconfirm the hearing listed for 2 February 2024. This is despite the fact that Ms Kaur had departed Australia on 18 November 2023 and was not intending to return to Australia until mid-April 2024. This is not merely a discourtesy to the Court and the Minister who is a party to the proceeding. It indicates that Ms Kaur lacks any real intention to prosecute this appeal. The lack of a sincere intention to prosecute the appeal is further confirmed by the fact that the appellants have not taken any step in the appeal since it was first filed.

23    Second, as Ms Kaur has departed Australia on a bridging visa, that visa has expired and Ms Kaur will not be able to return to Australia without obtaining another visa. Ms Kaur’s evidence that she intends to return to Australia on 15 April 2024 must be understood in light of the fact that, currently, Ms Kaur has no right to return to Australia. It may be, as Ms Kaur submitted, that she will be able to return to Australia on a tourist visa. However, at present, that remains a matter of speculation.

24    Third, this Court regularly conducts hearings via video facility using Microsoft Teams, and is able to do so in this case.

25    Fourth, I consider that Ms Kaur has had ample time to arrange and obtain legal representation in the appeal, if that was her true intention. In those circumstances, it is now unreasonable for Ms Kaur to seek an adjournment of the hearing in order to obtain legal representation. Further, given Ms Kaur’s failure to take any step in the proceeding or obtain legal representation prior to the hearing on 2 February 2024, I do not accept that Ms Kaur has a sincere intention to obtain legal representation.

26    Fifth, and for the reasons elaborated on below, I find that the appeal has no prospect of success. Even prior to the Full Court’s decision in Singh, the appeal had no reasonable prospect of success. Following the Full Court’s decision in Singh, the appeal is hopeless.

27    Despite the foregoing, I granted Ms Kaur an adjournment until 8 February 2024, which I considered sufficient time to enable Ms Kaur to obtain copies of the relevant appeal papers in Canada and prepare to argue the appeal.

28    The appeal was heard on 8 February 2024. Ms Kaur appeared by Microsoft Teams and advanced oral submissions in support of her appeal. Ms Kaur’s submissions were consistent with the grounds of appeal advanced on this appeal, which are considered below.

Background facts

29    The following facts, which are uncontroversial, are taken from the primary judgment and the materials that have been tendered in this appeal.

30    Ms Kaur is an Indian national. She arrived in Australia in 2009 as the holder of a student visa.

31    On 11 May 2017, Ms Kaur applied for the Regional Employer Nomination (Permanent) (Class RN) visa. Her application for a visa included dependent applications made for Chetan Kanda and Myra Kanda.

32    Ms Kaur sought the visa to work in the nominated position of “Graphic Pre-press Trades Worker”. A company called Print-a-Portal Pty Ltd (PaP) was the nominating employer. The director of PaP was Chetan Kanda.

33    Also on 11 May 2017, PaP made an application to the Minister for approval of the nomination of Ms Kaur’s position under reg 5.19 of the Migration Regulations 1994 (Cth) (Regulations).

34    On 21 July 2017, the application by PaP was refused by a delegate of the Minister because the delegate was not satisfied that PaP would be able to pay the nominee (Ms Kaur) the proposed salary of $54,000 for a 2-year period.

35    Also on 21 July 2017, the Department wrote to Ms Kaur advising that the nomination submitted by PaP in respect of her position had been refused. In the letter, the Department advised Ms Kaur that, in those circumstances, there was no possibility of her application for the visa being approved and invited her to withdraw the application. The Department also advised Ms Kaur that, if the application was not withdrawn, it would be refused.

36    On 5 September 2017, the Minister’s delegate refused to grant Ms Kaur the visa. In an accompanying decision record, the delegate noted that the visa could not be granted to Ms Kaur unless the relevant criteria specified in the Act and the Regulations were fulfilled. The delegate was not satisfied that cl 187.233 of Schedule 2 of the Regulations was fulfilled. That clause stated as a condition that the Minister must have approved the nomination made by the nominator in respect of the position for which the visa was sought. That had not occurred. The decision record also stated that the dependent applications made on behalf of Chetan Kanda and Myra Kanda were refused for the reason that Ms Kaur’s application was refused (and, as a result, cl 187.311 of Schedule 2 of the Regulations was not fulfilled).

37    On 20 September 2017, Ms Kaur applied to the Tribunal for review of the delegate’s decision.

38    PaP also made an application to the Tribunal for review of the delegate’s decision to refuse the approval of the nomination of Ms Kaur’s position. On 25 February 2020, the Tribunal affirmed the delegate’s decision in respect of PaP’s application. The Tribunal concluded that PaP had failed to provide sufficient independent or verifiable evidence to demonstrate that the business had the financial capacity to employ the nominee on a full-time basis in the nominated position for at least 2 years.

39    On 4 March 2020, the Tribunal wrote to the appellants and invited them to respond to information that the Department considered would be the reason, or part of the reason, to affirm the decision under review. The information was that PaP’s application for approval of the nomination of Ms Kaur’s position had been refused by the Tribunal on 25 February 2020.

40    On 6 July 2020, the Tribunal affirmed the decision not to grant the visa to Ms Kaur for the same reason as the delegate; viz that clause 187.233 of Schedule 2 of the Regulations was not satisfied because the nomination made by PaP in respect of Ms Kaur’s position had not been approved. The Tribunal also noted that, at the hearing, Ms Kaur sought to agitate the question whether the nomination made by PaP should have been approved by the Tribunal. The Tribunal found that that question was not an issue that was properly before the Tribunal in the review of the delegate’s decision concerning Ms Kaur’s application for a visa.

Application for review before the Federal Circuit Court

41    On 17 July 2020, the appellants filed an application for judicial review of the Tribunal’s decision of 6 July 2020 (which I will refer to as the visa decision) in the (then) Federal Circuit Court.

42    As noted by the primary judge, PaP had separately filed an application for judicial review of the Tribunal’s decision of 25 February 2020 affirming the delegate’s decision to refuse the approval of the nomination of Ms Kaur’s position (which I will refer to as the nomination decision) (PJ [15]). PaP required an extension of time to commence its application for judicial review. The primary judge heard the appellants’ application for judicial review of the visa decision and PaP’s application for an extension of time together. On 30 April 2021, the primary judge delivered a separate judgment refusing PaP’s application for an extension of time: Print a Portal Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 877. No appeal has been filed in respect of that decision. Indeed, no appeal lies to the Federal Court against a decision of the Federal Circuit Court dismissing an application for an extension of time: BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [4] (Logan J).

43    The appellants raised six grounds of review before the primary judge (PJ [16]). It is unnecessary to reproduce the grounds.

44    The primary judge observed (PJ [19]) that grounds 2 to 5 took issue with the Tribunal’s nomination decision, not the Tribunal’s separate visa decision. None of those grounds were relevant to the visa decision. The primary judge concluded that the appellants did not have standing to challenge the nomination decision. Only PaP had standing to do so.

45    By ground 1, the appellants contended that they were denied natural justice and, in oral submissions asserted bias by the Tribunal by reason that the same Tribunal member made both the nomination decision and the visa decision. The primary judge rejected those grounds, observing that the decisions did not involve matters of credit and there was no other basis on which to conclude that there might be prejudgment by the Tribunal member concerned (PJ [21]).

46    By ground 6, the appellants contended that the visa decision was infected with error because the nomination decision was itself infected by error. The primary judge rejected that ground on two bases (PJ [22]). First, the primary judge considered PaP’s application to the Court in respect of the nomination decision and had separately determined that the Tribunal did not make an error in respect of it. Second, as noted above, the primary judge concluded that the appellants did not have standing to challenge the nomination decision.

The Appeal

47    By the application for leave to appeal filed on 10 May 2021, the appellants stated 10 grounds of appeal. The first ground concerned the reason that leave should be granted. By an accompanying draft notice of appeal, the appellants stated 9 grounds of appeal which consisted of grounds 2 to 10 of the application for leave. As I have determined that the appellants do not require leave to appeal, the first ground of the application for leave is unnecessary and I will treat the draft notice of appeal as stating the grounds of appeal. The grounds are as follows:

1.     That the decisions of the first respondent and the second respondent are infected by legal errors whereby both decisions are based on the similar vague assumptions about the nominating business compliance to terms and conditions of employment of the appellant with the nominating business and without weighing evidence on the record.

2.    That the second respondent relied upon its own speculations that the business is unable to pay the proposed salary of the nominee for a 2-year period without taking into consideration that the nominee was being paid as per the proposed terms and conditions of the employment past more than last 2 years, even though the employment contract was due to commence only after approval of the RSMS Visa.

3.    That the employment contract has clause that the employment contract will come into effect after grant of RSMS visa, still the nominating business kept paying the salary of $54000 per annum to the nominee in harmony with the employment terms and conditions starting from 14 November 2016 and till now. The evidence produced in these regards were overruled by the second respondent which indicate that procedural fairness has not been adopted, thus against the Principles of the law.

4.    That impugned Judgment of the Federal Circuit Court is also infected by legal error by failing to consider that the second respondent made a legal error by not evaluating the evidence before it. Whereby the second respondent disposed the merits review solely based on Departmental file records and contentions about the given Business Activity Statements and financial reports of the nominating business for the relevant years as ‘unverifiable’ documents and negated the very grounds of approval of Employer Nomination, which became the aorta of the matter that eclipsed the application for RSMS visa.

5.    That ethically a matter decided based on another wrong decision cannot be justified as legal and determined as per the law. The second respondent wrongfully decided the merits review in relation to refusal of the Regional Employer Nomination Application that led to no meeting the requirements of clause 187.233 of the Migration Regulations 1994 (Cth.).

6.    That the second respondent’s assertion at the time of hearing that if the merits review applicant (herein appellant) may prove the continuous employment with the nominating business for last 2 years, the second respondent will consider the nominated position as genuine. But the second respondent upheld the original decision of the first respondent despite of providing adequate evidence of continuous employment for 2 years.

7.    That the second respondent was unconsciously biased by labelling the duly lodged tax documents as unverifiable and considering the vital evidence as inadmissible, further weighing it negatively to fatality of the merits review which resulted injustice to the appellant(s) and hence this appeal.

8.    That in both instances, first, at merits review proceedings and again at judicial review hearing, both hearings were conducted in conjunction with each other, where first application was refused contrary to the law and the regulations of Migration Regulation 1994 (Cth.) and another due to operation of law.

9.    That the position is genuine, and the appellant is still working full time with the nominating business into the nomination position as per the workplace.

48    The above grounds differ in form from the grounds of review raised before the primary judge, but they generally seek to traverse similar issues.

49    Grounds 1 to 7 are not directed to the visa decision but are directed to the nomination decision. As found by the primary judge, the appellants were not party to the nomination decision and therefore do not have standing to challenge that decision. That conclusion was affirmed by a majority of the Full Court in Singh (O’Sullivan J at [100], Raper J agreeing at [205]). Furthermore, the appellants have not attempted to bring any application in respect of the decision of the primary judge concerning the nomination decision. If any such application had been brought, it would have had to establish error in the primary judge’s decision to refuse an extension of time to make an application for judicial review. The appellants have not sought to address that issue.

50    Ground 8 alleges (unidentified) error by reason of the Tribunal hearings and the Federal Circuit Court hearings being conducted concurrently. The allegation is factually incorrect in respect of the Tribunal hearings. In the Tribunal, the review of the nomination decision was heard on 12 November 2019 and Chetan Kanda appeared to give evidence and present arguments as the sole director of PaP. The hearing concluded and the Tribunal allowed PaP to provide further written material to the Tribunal by 12 December 2019, which it did. The Tribunal made a determination on 25 February 2020, affirming the delegate’s decision to refuse the nomination. The review of the visa decision was heard on 23 June 2020 and the Tribunal made a determination on 6 July 2020 affirming the delegate’s decision not to grant the visa. The allegation is factually correct in respect of the Federal Circuit Court hearings, but the allegation does not demonstrate error by the Federal Circuit Court. The appellants have not identified any basis upon which the judicial function exercised by the primary judge miscarried by reason of the fact that the court heard both applications at the same time.

51    Ground 9 appears to be directed to the nomination decision (in respect of which the appellants do not have standing). Further, the ground seeks to raise factual matters going to the merits of the nomination decision. The primary judge was not empowered to review the merits of the Tribunal’s decisions. To the extent that ground 9 relates to the visa decision, the ground does not identify any legal error in the primary judge’s decision nor any jurisdictional error in the Tribunal’s decision.

Conclusion

52    For the foregoing reasons, the appeal will be dismissed with costs.

Associate:    

Dated:    8 February 2024