Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RELEVANT LAW 11 By regulation 5.19(1) of the Regulations, a person (the "nominator") may apply to the Minister for approval of the nomination of a position in Australia. The application must comply with the requirements set out in reg 5.19(2), which include that it identify the subclass and stream to which the nomination relates. In the present case, the applicable subclass and stream was Subclass 187 (Regional Sponsored Migration Scheme) in the Direct Entry stream. Regulation 5.19(3) provides that the Minister must approve the nomination if the Minister is satisfied that the requirements in reg 5.19(4) are met. It is presently unnecessary to list those requirements. The applicant seeks the visa in the Direct Entry stream to work in the nominated position of singer (ANZSCO: 211214). Accordingly, the requirements include that the conditions set out in cl 187.233 of Schedule 2 to the Regulations are met. 12 The connection between the relevant provisions of the Migration Act 1958 (Cth) and clause 187.233 of Schedule 2 to the Regulations can be summarised as follows: (a) Section 31(1) of the Act provides for prescribed classes of visas and s 31(3) provides that criteria for classes of visas may be prescribed. "Prescribed" means prescribed by the Regulations (s 5(1)). (b) Pursuant to s 65, the Minister is to refuse to grant a visa if he is not satisfied that the criteria have been met. (c) Regulation 2.01 provides that prescribed classes of visa are set out in Schedule 1 to the Regulations. (d) Item 1114C of Schedule 1 establishes the Regional Employer Nomination (Permanent) (Class RN) as a prescribed class of visa. (i) Subitem 1114C(3)(d) requires the applicant to declare that the position to which the application relates is a position nominated under reg 5.19. (ii) Subitem 1114C(4) lists "Subclass 187 (Regional Sponsored Migration Scheme)" as a subclass. (e) Regulation 5.19 concerns the approval of nominated positions by the Minister (as summarised above), including in relation to applications for Subclass 187 visas. (f) Regulation 2.03(1) provides that the criteria applicable to a particular visa class is set out in the relevant part of Schedule 2 (Provisions with respect to the grant of Subclasses of visas). (g) Subpart 187.23 of Schedule 2 sets out some of the criteria for applicants seeking a Subclass 187 visa in the Direct Entry stream. This relevantly includes cl 187.233. 13 As at the date of the delegate's decision, clause 187.233 of Schedule 2 to the Regulations provided: (1) The position to which the application relates is the position: (a) nominated in an application for approval that: (i) identifies the applicant in relation to the position; and (ii) is made in relation to a visa in a Direct Entry stream; and (iii) seeks to meet the requirements of subregulation 5.19(12); and (b) 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. (2) The person who will employ the applicant is the person who made the nomination. (3) The Minister has approved the nomination. (4) The nomination has not subsequently been withdrawn. (4A) Either: (a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or (b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person. (5) The position is still available to the applicant. (6) The application for the visa is made no more than 6 months after the Minister approved the nomination.

THE DELEGATE AND TRIBUNAL DECISIONS 14 The delegate refused to grant the visa because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations, as the applicant was not the subject of a nomination that had been approved by the Minister. On 13 December 2018, when the matter was before the Tribunal, it sent a letter to the applicant indicating that the nomination for the position identified in the applicant's visa application was not approved and that the decision to refuse the nomination was not the subject of an application for review. The applicant was asked to indicate whether the visa application was the subject of an approved nomination or if the refusal was the subject of an application for review and otherwise to provide comments or respond to the letter. The applicant did not respond. On 24 January 2019, the Tribunal informed the applicant of the hearing date. The applicant did not appear. 15 The Tribunal determined that in the absence of an approved nomination or any pending review of the Minister's refusal to approve the nomination, the decision of the delegate must be affirmed.

THE APPLICATION FOR LEAVE TO APPEAL 16 In the present application, the applicant advances seven proposed grounds of appeal. The first five are not directed to any error, let alone jurisdictional error, on the part of the primary judge. In this regard, the relationship between the applicant and his proposed employer, to which reference is made in proposed grounds 3 and 4, is not presently relevant. Ground 5 is misconceived. Neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the applicant satisfies the criteria for the grant of the visa or to grant the applicant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal's decision to refuse to grant the visa to the applicant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal's decision to refuse to grant the applicant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the FCA Act. 17 In ground 6, the applicant contends that he satisfies cl 187.23 (which I understand to be a reference to cl 187.233). However, no information is provided to support that contention. The Tribunal was satisfied by reference to the Departmental records that the nomination by the sponsor under cl 187.233 had been refused. That was a mandatory requirement for the grant of the visa. No error has been demonstrated in the primary judge's reasons in finding no jurisdictional error on the part of the Tribunal in this regard. 18 In ground 7, the applicant contends that he was not afforded procedural fairness by the department and, I infer, that he was not afforded procedural fairness by the Tribunal. This ground was not raised before the primary judge. No particulars are provided as to the basis upon which it is said that the applicant's circumstances were not taken into consideration. As I have noted, the applicant was provided notice of the grounds upon which the delegate refused the application and provided an opportunity to respond to those grounds and to attend the hearing before the Tribunal. He did neither. To the extent that this ground includes a complaint that the applicant did not have legal advice or representation, it must also be rejected. An applicant has no freestanding right to have publicly funded legal representation as an aspect of the requirements of procedural fairness: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68; 241 FCR 30 at [51]-[52] (Flick, Griffiths and Perry JJ). It may be noted, as the Minister submits, that the applicant had ample opportunity to seek legal advice and representation: the Tribunal decision was made on 22 February 2019, and the Federal Circuit Court hearing was on 18 August 2021. Indeed, the applicant had lodged his application for review with the Tribunal even earlier, on 24 May 2018. Further, the applicant has not provided any information setting out how the lack of legal representation or lack of understanding has actually generated procedural unfairness. 19 Accordingly, this ground does not establish any appealable error.

DISPOSITION 20 The application for leave to appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.