Sadyal v Minister for Home Affairs

Federal Court of Australia|2019-08-16|Before: Charlesworth J

The appeal is dismissed.
The appellants are to pay the first respondent's costs fixed in the sum of $3,953.95.
The appellants have liberty to apply to vary the amount specified in the order in paragraph 2 such liberty to be exercised no later than 30 August 2019.
Any application made in accordance with the order in paragraph 3 may be made by email to Associate.CharlesworthJ@fedcourt.gov.au. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 The first appellant, Mr Dinesh Sadyal is a citizen of India. The second and third appellants are Mr Sadyal's wife and child. 2 The appellants appeal from a judgment of the Federal Circuit Court of Australia (FCCA) given on 5 April 2019: Sadyal & Ors v Minister for Home Affairs & Anor [2019] FCCA 843. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Home Affairs to refuse to grant Mr Sadyal a Temporary Work (Skilled) (subclass 457) visa under the Migration Act 1958 (Cth).

THE ACT AND REGULATIONS 3 Section 31 of the Act provides that there are to be prescribed classes of visa. The Migration Regulations 1994 (Cth) may prescribe the criteria for a visa of a particular class. If the Minister is satisfied that a visa applicant fulfils the criteria for the grant of the visa, the Minister must grant the visa: s 65(1)(a) of the Act. If the Minister is not so satisfied the Minister must refuse to grant the visa: s 65(1)(b) of the Act. 4 The essential criteria for the visa for which Mr Sadyal applied included those prescribed in cl 457.223 of Sch 2 to the Regulations. It contains alternate criteria in cl 457.223(2) and cl 457.223(4). Mr Sadyal claimed that he satisfied the criterion in cl 457.223(4). No claim was made in relation to the alternate criterion. 5 Clause 457.223(4)(a) requires that there is an approved nomination of an occupation in relation to the applicant by a standard business sponsor that has not ceased. The nomination is to be approved under s 140GB of the Act. 6 Clause 457.223(4)(a) provides: Standard business sponsorship (4) The applicant meets the requirements of this subclause if: (a) each of the following applies: (i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; (ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; (iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and 7 Section 140GB provides: 140GB Minister to approve nominations (1) An approved sponsor may nominate: (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to: (i) the applicant or proposed applicant's proposed occupation; or (ii) the program to be undertaken by the applicant or proposed applicant; or (iii) the activity to be carried out by the applicant or proposed applicant; or (b) proposed occupation, program or activity. (2) The Minister must approve an approved sponsor's nomination if: (a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC - the labour market testing condition under section 140GBA is satisfied; and (b) in any case - the prescribed criteria are satisfied. 8 Regulation 2.72 is titled "Criteria for approval of nomination - Subclass 457 (Temporary Work (Skilled)) visa". It sets out the prescribed criteria for the purposes of s 140GB which includes: (10) If the person is a standard business sponsor - the Minister is satisfied that: … (f) the position associated with the nominated occupation is genuine; …

TWO DECISIONS UNDER THE ACT 9 Mr Sadyal's proposed employer is Canberra Fresh Group Pty Ltd as trustee for Canberra Fresh Group Trust. Canberra Fresh was approved as a standard business sponsor by Notice of Decision dated 6 October 2015. On 18 December 2015 Canberra Fresh applied for approval of its nomination of Mr Sadyal (the nomination application). For the purposes of reg 2.72(10)(f), the nominated occupation was that of a Customer Service Manager. 10 On 22 July 2016 a delegate of the Minister refused the application of Canberra Fresh on the basis that the criterion prescribed in reg 2.72(10)(f) had not been met. As a consequence of that decision, the appellants' visa application was refused because Mr Sadyal was not the subject of an approved nomination as required by cl 457.223(4)(a)(i). 11 Canberra Fresh and the appellant each made applications to the Tribunal to review the respective decisions of the delegate. 12 On 17 April 2018, the Tribunal affirmed the delegate's decision to refuse the nomination application (nomination refusal decision). 13 The Tribunal informed the appellants of that decision and invited them to comment or respond. The appellants did not respond and on 8 May 2018 the Tribunal affirmed the decision not to grant Mr Sadyal a visa on the basis that he was not the subject of an approved nomination of an occupation by a standard business sponsor that had not ceased (visa refusal decision). 14 Canberra Fresh made an application for judicial review of the nomination refusal decision in the FCCA. The FCCA dismissed that application on 5 April 2019: Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842. 15 The appellants applied for judicial review of the visa refusal decision. The FCCA dismissed that application by orders also made on 5 April 2019. That is the decision of which this appeal relates. 16 This Court does not have before it an appeal from the judgment in Canberra Fresh Group. From this Court's records it appears that no appeal was commenced by Canberra Fresh in respect of that judgment.

TWO PROCEEDINGS IN THE FCCA 17 The appellants relied on the following grounds for judicial review in the FCCA: 1. The Tribunal acted unreasonably in affirming the refusal of nomination lodged by the sponsor/employer of the First applicant and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa. Particulars i. In paragraph 12 of the decision, the Tribunal had evidence before it that the businesses served 5,000 (five thousand) customers each week and that the nominated position operated over the top of the all customers and over the top of staff. ii. In paragraph 21, the Tribunal accepted that the business operate from two stores and so have a large volume of sales but still found that it was not of a scale to require a customer service manager. iii. The tribunal in paragraph 19 of its decision accepted that the description of tasks included in the ANZSCO matched the position of a customer service manager. iv. The applicant's description of the nominee's role, as stated in paragraph 12 of the Tribunal's decision, and the tasks outlined to be undertaken by the nominee were reasonably aligned with the ANZSCO requirements for the role. v. In Paragraph 245, the Tribunal erroneously interlocked the roles of store manager and the customer service manager. 2. The Tribunal took irrelevant considerations into account in affirming the decision of the delegate of the First respondent not to approve the nomination and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa. Particulars i. Paragraph 21, 'it indicates to the Tribunal that consistent with the objectives of a retail outlet, all floor staff who serve customers would have the responsibility for ensuring customer service.' ii. Paragraph 25, 'The Tribunal notes that the store manager is involved in the overall management of the business. 3. The Tribunal misinterpreted the law or misapplied the law to the facts in the nomination decision and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) Visa. Particulars i. r2.72(10)(f) and the approach taken in Cargo First Pty Ltd v Minister for Immigration and Border Protection [2016] FCA 30. 18 As the primary judge noted (at [3]) of her Honour's reasons for judgment these grounds were substantively the same as those agitated by Canberra Fresh on its application for judicial review of the nomination refusal decision. 19 The primary judge concluded that there was no jurisdictional error affecting the Tribunal's decision to refuse to grant Mr Sadyal the visa. That conclusion inevitably followed from the dismissal of the application for judicial review that had been made by Canberra Fresh and the reasons given by her Honour in Canberra Fresh Group. The primary judge nonetheless engaged with the grounds for judicial review advanced by Mr Sadyal, albeit in terms that cross-referred to the reasons given in Canberra Fresh Group. It is convenient to extract that short portion of her Honour's reasons in full: 19. The applicant argued three review grounds: Ground one: The Tribunal acted unreasonably in affirming the refusal of nomination by the employer of the first applicant and so wrongly affirmed the decision of the delegate not to grant the first applicant a Temporary Work (Skilled) (subclass 457) visa. 20. I refer to my reasons set out in Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842 in relation to this ground of review, in particular the reasons set out at paragraphs 33 to 49 (inclusive). The applicant failed to satisfy the Tribunal that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor and failed to meet the requirement under clause 457.223(4)(a) of the regulations. I am satisfied that the decision of the Tribunal in affirming the decision of the delegate not to grant the 457 visa was not wrongly decided. There was no jurisdictional error. Ground two: The Tribunal took irrelevant considerations into account in affirming the decision of the first respondent not to approve the nomination and so wrongly affirmed the decision of the delegate not to grant the first applicant a Temporary Work (Skilled) (subclass 457) visa. 21. The primary visa applicant did not identify any irrelevant considerations in written submissions but argued that the Tribunal's decision in affirming the delegate's decision to refuse the approval of the nominated occupation on the basis that it was not satisfied it was genuine was an 'unreasonable exercise of its jurisdiction.' This matter was considered in my decision in Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust (supra). 22. The assertion by the applicant that 'the Tribunal failed to consider that the number of complaints over a certain period of time was not decisive on the determination of a particular role' misunderstands the evidence before the Tribunal. The Tribunal took into account that there were few complaints and a range of other matters in concluding that the actual role of the primary visa applicant was to provide a range of retail services and supervise staff in conjunction with the store manager and the scale and size of the business operation did not require a designated Customer Service Manager having regard to the fact that the position as indicated in ANZSCO was highly specialised and involved strategic planning, policy development and review, implementation of after sales service for the purpose of following up customer satisfaction and identifying and responding to customer expectations. Error was not established. Given that the applicant failed to satisfy the Tribunal that he was subject to an approved nomination of an occupation by a standard business sponsor the decision by the Tribunal affirming the decision to refuse to grant the 457 visa was not wrongly decided. Ground three: The Tribunal misinterpreted the law or misapplied the law to the facts in the nomination decision and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) visa. 23. This ground is addressed in my reasons in relation to Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust (supra). Given that the applicant failed to satisfy the Tribunal that he was subject to an approved nomination of an occupation by a standard business sponsor the decision by the Tribunal affirming the decision to refuse to grant the 457 visa was not wrongly decided.

THIS APPEAL 20 Mr Sadyal appeared on this appeal on his own behalf and on behalf of the second and third appellants. The grounds of appeal are cast in terms that reflect his status as a self-represented litigant. They are expressed as follows (without alteration): 1. HON. JUDGE FAILED TO HOLD THAT ADMINISTRATIVE APPEALS TRIBUNAL MADE JURISDICTIONAL ERROR OF LAW WHEN IT TOOK INTO ACCOUNT IRRELEVANT CONSIDERATION AND MISCONDUCT THE FACTS. 2. THE APPLICANT CLAIMS HE SATISFIES ALL REQUIREMENTS FOR VISA. THE FIRST RESPONDENT OVERLOOKED OR MISTOOK THE FACTS AND MADE DECESION ON LIMITED INFORMATION WITHOUT CONSIDERING ALL THE INFORMATION AND CIRCUMSTANCES. 3. APPLICANTS SATISFY SUBREGULATION 2.72 ASSOCIATED WITH THE NOMINATED OCCUPATION IS GENUINE. 4. AAT MISUSE HIS POWER AND NOT CONSIDER HIS APPLICATION AND BLINDLY REFUSED TO GRANT VISA. 21 Mr Sadyal did not file written submissions in support of these grounds. He told the Court that he did not wish to make any oral submissions but relied solely on the arguments advanced on the face of the notice of appeal. When urged by the Court to make oral submissions in support of the grounds, Mr Sadyal repeated that he relied only on the arguments stated on the notice of appeal. 22 The difficulty for Mr Sadyal is that his grounds of appeal are not particularised and are largely uninformative. In the absence of written and oral submissions, the Court cannot comprehend the nature of the appealable error the primary judge is said to have made. Whilst considerable latitude may be extended to a self-represented litigant in Mr Sadyal's position, particularly when interpreting grounds of appeal, it is not for the Court to scrutinise the reasons for judgment of the primary judge to identify errors that an appellant has made no attempt at all to articulate. 23 The appeal should be dismissed on that basis alone. 24 A more fundamental difficulty for Mr Sadyal is that no appeal has been commenced by Canberra Fresh from the judgment of the primary judge in Canberra Fresh Group by which the primary judge refused to make orders in the nature of certiorari quashing the nomination refusal decision. Even if it were within the appellate jurisdiction of this Court on this appeal to entertain arguments as to whether the judgment in Canberra Fresh Group was correctly decided (which is doubtful), Mr Sadyal has not advanced any written or oral submissions on that topic. To the extent that the primary judge cross-referred to the reasons given in Canberra Fresh Group, Mr Sadyal has not identified any basis for concluding that her Honour's reasoning was erroneous, nor is any error immediately apparent on the face of the reasons. 25 The primary judge was entitled (indeed obliged) to recognise the effect of the judgment and orders given in Canberra Fresh Group. It necessarily follows that there is no appealable error affecting the conclusion of the primary judge that the visa refusal decision was not affected by jurisdictional error. Indeed, the decision to refuse to grant the visa was mandated by s 65 of the Act because Mr Sadyal did not satisfy the visa criteria in cl 457.223(4) and he had made no claim to fulfil the alternate criterion in cl 457.223(2): cf Song v Minister for Home Affairs [2019] FCA 970 (Perram J). 26 It follows that the appeal should be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

Migration Act 1958(Cth)ss 31, 65, 140GB

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