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[2014] FCA 856
Federal Court of Australia
2014-08-13
Davies J
Original judgment source is linked above.
Introduction 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("the FCC") dismissing his application for review of the decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed the decision of a delegate of the first respondent ("the Minister") to refuse the appellant's application for a Regional Sponsored Migration Scheme ("RSMS") - Class BW, subclass 857 visa under s 65 of the Migration Act 1958 (Cth) ("the Act"). The application was refused because the primary criteria for the visa specified in Subclass 857 of Sch 2 of the Migration Regulations 1994 (Cth) ("the Regulations") was not met at the time of the decision on the application. 2 Subclass 857 of Sch 2 of the Regulations at the relevant time (Subclass 857 was repealed on 1 July 2013: Migration Amendment Regulation 2012 (No. 2) (Cth) s 2(b) and Sch 2, item [26]) included the following criteria that was required to be satisfied at the time of decision: 857.221 The appointment mentioned in paragraph 857.213(a): (a) has been approved; and (b has not been withdrawn; and (c) continues to satisfy the criteria for approval; and (d) is still available to the applicant.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. 3 Clause 857.213 provided that a number of criteria be satisfied, including: (a) the applicant has been nominated by an employer, in accordance with subregulation 5.19(4), for an appointment in the business of that employer; 4 The appellant had been nominated by an employer for an appointment in that employer's business but the appointment had been withdrawn.
Background 5 The appellant is a citizen of India. On 25 June 2012, the appellant applied to the Department of Immigration and Citizenship ("Department") for a RSMS - Class BW, subclass 857 visa. The visa application provided the details of the nominating business, Bryant Concepts Pty Ltd, and described the appellant's job title and occupation as "Graphic Pre Press Trade Worker". A letter of engagement offering the appellant a position in Bryant Concepts Pty Ltd accompanied the application. 6 A letter was received by the Department from Bryant Concepts Pty Ltd notifying it that the person who had nominated the appellant for the position did not work for Bryant Concepts Pty Ltd, had never had any position at Bryant Concepts Pty Ltd, and had no authority to submit any application on behalf of Bryant Concepts Pty Ltd. The letter requested the withdrawal of the "fraudulent application". A file note from the Department dated 5 March 2013 recorded: Please note person who nominated the position not authorised to do so as not employed in the business - now in custody for fraud 7 On the same date, the Department sent a letter to Mr Bryant of Bryant Concepts Pty Ltd acknowledging the withdrawal of the nomination of the appellant. 8 On 6 March 2013, a delegate to the Minister refused to grant the visa on the basis that the appellant did not satisfy cl 857.221(b) of Sch 2 to the Regulations, because the appointment had been withdrawn. 9 The appellant applied to the Tribunal for review of the delegate's decision.
THE TRIBUNAL's DECISION 10 By letter dated 6 September 2013, the Tribunal invited the appellant to attend the hearing and warned the appellant that, if he did not attend the hearing, a decision might be made without the Tribunal taking any further action to allow or enable the appellant to appear before it. The appellant did not attend the hearing before the Tribunal. In its reasons, the Tribunal referred to s 362B of the Act, which provides that if an applicant has been invited to attend a hearing under s 360 and does not appear, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it, and, on that basis, the Tribunal proceeded to review the decision. 11 On 9 October 2013, the Tribunal published its reasons for affirming the decision under review to refuse to grant the appellant the visa sought. The Tribunal observed that the visa sought was "an onshore permanent visa for applicants who meet the requirements for a position nominated by an employer who requires skills possessed by the applicant in their business": at [7]. 12 The Tribunal found at [9]-[10]: The primary criteria to be satisfied at the time of an application for a Subclass 857 visa as set out in Subdivision 857.21 of Part 857 of Schedule 2 to the Regulations includes that the applicant be nominated by an employer, in accordance with r.5.19(4), for an appointment in the business of that employer: cl.857.213(a). The primary criteria to be satisfied at the time of decision includes that the appointment mentioned in cl.857.213(a) has been approved and has not been withdrawn: cl.857.221. 13 The Tribunal concluded that there was no evidence before it to indicate that the appointment had been approved; to the contrary, the evidence was that the appointment of the appellant had been withdrawn at the time that the Minister's delegate made the decision. The Tribunal found that the appellant did not satisfy the essential criterion for the grant of the visa, and, accordingly, affirmed the decision of the delegate.
The FEDERAL CIRCUIT COURT's DECISION 14 The appellant sought judicial review of the Tribunal's decision. The grounds of review stated: 1. S.447, Judicial review can be lodged within 35 days after tribunal review has been finalised 2. I am not happy with tribunal decision, applying for judicial review for legitimate decision 3. I do have exceptional circumstances beyond the application lodgement previously, as circumstances changed my employer has withdrawn the nomination 4. I have received only the decision but I did not receive the hearing invitation to attend by email or mail. 15 In his accompanying affidavit the appellant repeated grounds 2 and 3. His application was also accompanied by a letter which stated: I am applying for Judicial Review as I have received the unfavourable decision from tribunal, I am still want find an employer in Australia. After the tribunal presently I living on my own, no job and getting only bit of aid from the father who lives in India. Even I claim the Employer as they have committed me to give an fulltime job opportunity for three years, this was also one of the reason how I went in bad track stayed without looking for other employer If have rightful knowledge and right intimations were given by my employer whom I have contacted this situation could have been happened, I should have left the Australia or else could have found the other employer to get sponsored. Hence I am requesting the Federal circuit to accept my situation as valid situation and accept the fee waiver for application fee. 16 At the hearing, the appellant submitted that his nomination had been approved, he believed, by somebody in South Australia. There was a letter from the South Australian Department for Manufacturing, Innovation, Trade, Resource and Energy dated 11 April 2012 notifying that the nomination had been certified under the RSMS but advising that certification did not guarantee that the Department would approve the nomination and grant the visa. 17 The FCC held that certification under the RSMS was not approval for the purposes of Subclass 857 of the Regulations and dismissed the application for judicial review on the basis that no legal error was shown in the Tribunal's reasons. The FCC reasoned that the Minister's delegate was required by s 65(1)(b) of the Act to refuse to grant the visa as the prescribed criteria were not met when the decision was made. 18 The FCC also held that the appellant was served with the invitation to attend the hearing before the Tribunal, which was sent by registered post to the appellant's nominated address, and that the Tribunal was empowered to proceed with the hearing without taking any further action to allow the appellant to appear: s 362B of the Act. The FCC concluded that even if the appellant did not receive the invitation to attend, "no useful result could ensue from the grant of the relief sought by the [appellant] in this matter" and, therefore, it would not have been appropriate to remit the matter for reconsideration by the Tribunal. The FCC cited in support SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29], [88]-[89]; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [11]-[12]; and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [122].
THE APPEAL TO THE FEDERAL COURT 19 By notice of appeal filed 12 June 2014, the appellant appealed to the Federal Court. 20 It was difficult to discern the appellant's grounds of appeal from the notice of appeal. The appellant appeared to allege that: (a) the Federal Circuit Court was "misguided" by the Minister's solicitors below; (b) the Tribunal did not provide the appellant or his employer enough time to provide submissions regarding the withdrawal of the appointment of the appellant by the employer; (c) new information demonstrates that the appellant was not responsible for the submission of any "unsatisfactory evidence, "false and misleading evidence", or "manifest error"; (d) exceptional circumstances beyond the appellant's control adversely affected his ability to ensure his claims were properly considered by the FCC. 21 The appellant also appeared to seek the opportunity to provide "valid reasons" about a number of matters, including "how he is eligible to lodge the review application at the [Tribunal] if he is given the chance". The appellant sought to have his application for judicial review reopened on the basis that the FCC had not looked at his claims. 22 It is not the function on judicial review to reconsider the merits of the appellant's case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. As the Minister correctly submitted, the lack of approval of the nomination and its subsequent withdrawal before the decision was made meant that the appellant was unable to satisfy cl 857.221 of Pt 857 of Sch 2 to the Regulations. It was irrelevant that the appellant was not to blame. The FCC was correct to find no legal error in the Tribunal's decision and no legal error is shown in the FCC's decision. 23 Accordingly, the appeal will be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.
Julakanti
Minister for Immigration and Border Protection