FEDERAL COURT OF AUSTRALIA Kaur v Minister for Immigration and Border Protection [2016] FCA 518 File number: VID 922 of 2015 Judge: BARKER J Date of judgment: 12 May 2016 Catchwords: MIGRATION – application for regional employer nomination (permanent) (class RN) subclass 187 visa – application for judicial review in Federal Circuit Court of Australia dismissed at show cause hearing – application for leave to appeal from Federal Circuit Court of Australia –whether decision of primary judge sufficiently attended by doubt – whether substantial injustice would result if leave were refused Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A) Migration Act 1958 (Cth) s 65, s 351 Federal Circuit Court Rules 2001 (Cth) R 44.12(1)(a) Migration Regulations 1994 (Cth) Sch 2 cl 187.223, cl 187.233, cl 187.233(1), cl 187.233(2), cl 187.233(3), cl 187.233(5), cl 187.242, cl 187.311 Trade Legislation Amendment (Australian Trade and Investment Commission) Regulation 2016 (Cth) Cases cited: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 655 Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 Date of hearing: 12 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 58 Counsel for the Applicants: The Applicants appeared in person Counsel for the First Respondent: Mr B Hornsby Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS VID 922 of 2015 BETWEEN: SANDEEP KAUR First Applicant AVTAR SINGH UPPAL Second Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BARKER J DATE OF ORDER: 12 MAY 2016 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the first respondent's costs to be taxed, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 The applicants, Ms Sandeep Kaur and Mr Avtar Singh Uppal, who are citizens of India, applied for regional employer nomination (permanent) (class RN) subclass 187 visas under s 65 of the Migration Act 1958 (Cth) on 25 June 2013. They chose not to apply under two alternative streams, the Temporary Residence Transition stream or the Agreement stream. 2 Ms Kaur sought the visa on the basis of a nomination from her sponsoring employer, Midland Café and Pizza Pty Ltd, in Bendigo for the position of "cook". Mr Uppal was included in the visa application as an accompanying family member and secondary applicant. 3 On 10 June 2013, 15 days prior to Ms Kaur's visa application, Midland Café and Pizza Pty Ltd lodged an application for approval of an employer nomination for a permanent appointment in the Direct Entry stream (nomination application). 4 On 13 December 2013, the former Department of Immigration refused the nomination application, a decision which was affirmed by the former Migration Review Tribunal (first Tribunal) on 24 November 2014. Midland Café and Pizza Pty Ltd failed to attend the review hearing before the first Tribunal. 5 Then on 10 January 2014, a delegate of the former Minister for Immigration refused to grant Ms Kaur and Mr Uppal visas on the basis that Ms Kaur had not satisfied cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth) (while cl 187.233 was repealed on 1 May 2016 by the Trade Legislation Amendment (Australian Trade and Investment Commission) Regulation 2016 (Cth), it was current at the time of the decisions of the delegate and Tribunal), because the nomination application had not been approved. 6 This was almost inevitable because, at the time of the delegate's visa decision, cl 187.233 required an applicant to satisfy the following requirements: (1) The position to which the application relates is the position: (a) nominated in an application for approval that seeks to meet the requirements on: (i) subparagraph 5.19(4)(h)(ii); or (ii) subregulation 5.19(4) as in force before 1 July 2012; 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 was the nominator in the application for approval. (3) The Minister has approved the nomination. (4) The nomination has not subsequently been withdrawn. (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. (Emphasis added.) 7 Ms Kaur and Mr Uppal sought review of the visa decision before the Migration Review Tribunal (second Tribunal), but it affirmed the delegate's decision on 17 March 2015. 8 The second Tribunal not only found the Minister had not approved the nomination, but also that the position was not still available to Ms Kaur. 9 On 9 December 2015, the Federal Circuit Court of Australia dismissed their application for judicial review of the second Tribunal's visa decision at a show cause hearing. See Kaur & Anor v Minister for Immigration [2015] FCCA 3434. 10 Ms Kaur and Mr Uppal now apply for leave to appeal the Federal Circuit Court's decision by an application for leave to appeal filed 15 December 2015. tribunal's decision 11 On 27 November 2014, three days after the first Tribunal affirmed the Department's decision to refuse the nomination application (apparently because of the Department's view it was a fast food outlet and not a restaurant), the second Tribunal wrote to Ms Kaur and Mr Uppal in relation to the visa application inviting them to comment on or respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal invited them to comment on their departmental records and the refusal of the nomination application. On its face, the Tribunal noted, this meant Ms Kaur was not the subject of an approved nomination and did not meet the requirements of cl 187.233 at the time of the decision. Consequently, the Tribunal also invited her to provide information that confirmed she met the alternative stream requirements in cl 187.233, 187.223 or 187.242 at the time of the decision. 12 By responsive letter dated 22 December 2014, Ms Kaur's legal representative advised the second Tribunal that Ms Kaur had ceased employment at Midland Café and Pizza Pty Ltd on 15 March 2014, after its proprietor suffered illness and sold the business to new owners. 13 On the evidence, the Tribunal found that, as required by cl 187.233(1) and (2), the position and employer to which the appointment related were the same as those in the nomination application. 14 However, in circumstances where the nomination application had been refused and the position at Midland Café and Pizza Pty Ltd was no longer available to Ms Kaur, the Tribunal found she did not meet the requirements of subcl (3) or (5). 15 Consequently, the second Tribunal held that Ms Kaur did not meet the requirements of cl 187.233 at the time of the delegate's decision. 16 The Tribunal further found that Ms Kaur did not meet the alternative requirements of cl 187.223 at the time of the delegate's decision as, at the time the nomination application was lodged, she held a skilled (provisional) (class VC) subclass 485 visa, rather than a subclass 457 visa. 17 In the alternative, cl 187.242 required the position to which the nomination application related to be one nominated in accordance with a labour agreement that was in effect and to which Midland Café and Pizza Pty Ltd was a party. In circumstances where Ms Kaur's legal representative gave evidence that Midland Café and Pizza Pty Ltd had never been party to a labour agreement, the second Tribunal also found that Ms Kaur did not meet the requirements of cl 187.242. 18 As Ms Kaur did not satisfy the visa criteria, the second Tribunal consequently found that Mr Uppal did not satisfy the requirements under cl 187.311. 19 The Tribunal then noted, having also heard evidence from the former owner of Midland Café and Pizza Pty Ltd about how the Department had not sought feedback from him as to the nature of his business and that it was not fast food, in connection with the earlier nomination application, that, although it considered the Department's failure to request further evidence from him at that time in relation to the nomination application to be a "procedural misstep", the second Tribunal was not in a position to remedy this misstep. 20 It further considered that the Minister was the only person who could waive the mandatory visa criteria, under s 351 of the Act. In this regard, the second Tribunal considered the relevant referral criteria, noting that Ms Kaur's representative did not formally request the case be referred to the Minister for consideration under s 351. It noted, in any event, her representative admitted the case did not come within the strict guidelines that warranted referral; a conclusion with which the Tribunal agreed, notwithstanding having sympathy for the position Ms Kaur and Mr Uppal found themselves in. Consequently, the second Tribunal decided not to refer the matter to the Minister for consideration under s 351. 21 Ms Kaur and Mr Uppal then sought judicial review of the second Tribunal's decision in the Federal Circuit Court of Australia. Judicial review in the federal circuit court 22 In their grounds of judicial review before the Federal Circuit Court, Ms Kaur and Mr Uppal contended: (1) The Tribunal failed to consider the applicant's individual and specific circumstances and apply the law accordingly. (2) That a breach of the rules of natural justice occurred in connection with the making of the Decision. (3) That the applicant was denied procedural fairness in connection with the making of the Decision. (4) That procedures that were required by law to be observed in connection with the making of the Decision were not observed. (5) That the making of the Decision was an improper exercise of the power conferred on the enactment in pursuance of which it was purported to be made. 23 The primary judge, at a show cause hearing, considered it was "clear" that the second Tribunal did consider the individual and specific circumstances of Ms Kaur and Mr Uppal, and applied the law to them. 24 Her Honour also considered she was unable to detect any breach of the rules of natural justice, or any manner in which procedures required by law were not observed. In this regard, the primary judge noted the Tribunal's letter dated 27 November 2014 and that Ms Kaur and Mr Uppal were represented at the Tribunal hearing. 25 Further, the primary judge was unable to see any basis upon which the Tribunal's decision could be considered an improper exercise of the power conferred by the Act. Her Honour noted the Tribunal's conclusions regarding the criteria in cl 187.233, and considered there was no prospect of Ms Kaur and Mr Uppal successfully arguing their grounds of review. 26 By the affidavit of Ms Kaur sworn 1 April 2015 and in oral submissions made at the show cause hearing, Ms Kaur and Mr Uppal further alleged that: (1) The Tribunal "failed to consider and correctly assess situation relating to sponsoring business my role as cook". (2) The Tribunal committed jurisdictional error by "not considering the essential facts of the case and by not giving correct weight to the matters that could have been crucial for the decision". (3) The Tribunal took "a lot of time to come up with its decision" and, if it had been quicker, the business would not have been sold and Ms Kaur would still have her position. 27 With regard to (1), the primary judge reiterated her conclusion that the Tribunal did correctly consider and assess the situation, and there was no other decision it could have made. 28 Similarly, with regard to (2), her Honour found the Tribunal did consider the essential facts of the case. Further, in circumstances where Ms Kaur did not satisfy the mandatory criteria, this was not a matter where weight was a consideration. 29 Finally, the primary judge held that (3) did not alter the fact that, at the time of the Tribunal's decision, an essential criterion could not be met as the position was no longer available to Ms Kaur. Further, the fact the nomination application had been refused was an "insurmountable difficulty". 30 In all the circumstances, the primary judge did not accept that the application for judicial review had a reasonable prospect of success, or any prospect of success, and so dismissed the application pursuant to R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 31 They now apply for leave to appeal from the primary judge's decision. Application in this court 32 The application for leave to appeal contains the following seven grounds: 1. I was the primary applicant for SC 187 regional sponsored migration scheme. My visa application has been refused claiming that the business where I got the sponsorship from was a fast food restaurant. 2. I applied to the migration review tribunal to review the decision of my visa refusal in the stipulated time frame. 3. Tribunal member affirm the decision of immigration department on 17 march 2015.unfortunately, tribunal member failed to assess correctly the situation relating to sponsoring business my role as a cook. 4. I believe that the tribunal made a juridical error by ignoring the essential facts of the case and not giving the correct weight to the case that could have been crucial for the decision. 5. I applied to the federal circuit court for juridical review on 1 April 2015 and get show case hearing on 9 Dec 2015 after had a directions hearing consequently. Where my case has been dismissed by the JUDGE RILEY. 6. I believe that the JUDGE RILEY did not consider my situation giving correct attention to the matter and after consider the essential fact of the case. 7. I also believe it is more likely possible for me to serve with the evidence and proofs to make a strong argument case as near to the final hearing. 33 In his written submissions, the Minister notes that, in the draft notice of appeal annexed to the affidavit of Ms Kaur affirmed 15 December 2015, Ms Kaur and Mr Uppal raise the following prospective grounds of appeal: 1. I believe that the respected judge has been dismissed the case in show case hearing, stating that this is not an arguable case. 2. I can collect and provide more evidence and proofs relevant to the case close to the final hearing scheduled. 34 The affidavit filed in Court contains no annexures. When the issue was raised with Ms Kaur and Mr Uppal, they confirmed they relied on the affidavit. 35 Ms Kaur and Mr Uppal did not file any written submissions but appeared, as self-represented parties, at the hearing and made oral submissions. 36 The Minister made submissions both in writing and orally at the hearing. 37 The Minister submits that, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), Ms Kaur and Mr Uppal require leave to appeal from the primary judge's interlocutory decision under R 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 38 Pursuant to the Full Court of this Court's decisions in Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36 at [4]; [2010] FCAFC 139 and Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399; [1991] FCA 655, the Minister notes that regard must be had to the following considerations when determining whether to grant leave to appeal: (1) whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration; and (2) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 39 The Minister says that the prospective grounds of appeal and grounds 1, 2, 5 and 7 for leave to appeal simply refer to the procedural background of the matter or indicate that further evidence will be filed. 40 To the extent ground 3 for leave to appeal can be construed as a complaint that the second Tribunal misapplied the law, the Minister submits that the Tribunal correctly applied the relevant law to the facts of the matter on hand, noting that it recited the relevant legislative requirements. 41 The Minister further submits that the Tribunal's findings of fact were open to it on the evidence and for the reasons it gave. 42 With regard to grounds 4 and 6 for leave to appeal, the Minister submits that the primary judge was correct in finding that the Tribunal did in fact consider the "essential facts of the case". The Minister further says that while the weight afforded to evidence is a matter for the Tribunal alone, this was not a matter where weight a consideration; the primary judge correctly found that the requirements in cl 187.233(3) and (5) were mandatory and that, having regard to the available material, Ms Kaur and Mr Uppal simply did not satisfy them. 43 Ultimately, the Minister submits there was no error in the primary judge's approach to the grounds of review relied upon by Ms Kaur and Mr Uppal. 44 For those reasons, the Minister submits the grounds raised do not demonstrate that the primary judge's decision is attended by sufficient doubt to warrant leave to appeal being granted, nor that refusing leave to appeal would result in substantial injustice. Consequently, the Minister seeks orders that the application for leave to appeal be dismissed with costs. 45 While the sequence of events that resulted in Ms Kaur and her partner being unsuccessful in their application for visas under the Direct Entry stream are unfortunate, it is difficult to detect any error made by the primary judge in the Federal Circuit Court when conducting judicial review of the second Tribunal's decision. In turn, it is difficult to detect any jurisdictional error committed by the Tribunal. 46 Rather, what seems to be the case here, is that, because the nomination application was rejected, on the apparent view that the employer was running a fast food restaurant and not an ordinary restaurant and Ms Kaur was not to be a "cook"; it followed that the visa application had to be refused as well. 47 By the time the visa matter had proceeded to the second Tribunal, the business of Midland Café and Pizza Pty Ltd had been sold and Ms Kaur no longer had a job available to her. 48 In relation to the visa matters, the second Tribunal noted that Ms Kaur and the former owner of the Midland Café and Pizza Pty Ltd business disagreed with the earlier nomination decision. 49 Nonetheless, the Tribunal pointed out, at [23] of its decision, at the time of the Tribunal hearing the position nominated for Ms Kaur was no longer available to her, given that the business had in fact been sold on 15 May 2014. Thus, she could not meet the requirement of subcl 187.233(5). 50 The Tribunal also found that she did not satisfy the requirements of the other two streams. 51 Under the heading "Other Matters" the Tribunal went out of its way, however, to recount the circumstances in which the former owner of the business was aggrieved by the fact that the Department had not provided him with the opportunity to provide further information to confirm that the nominated position was that of a cook, rather than a fast food cook, before it made its decision. At [48], the Tribunal understandably expressed some sympathy for Ms Kaur as it accepted she had made a genuine effort to lawfully apply for permanent residence in Australia on the basis of her skills as a cook and the contribution she could make to regional Australia. The Tribunal noted the "unfortunate circumstances" that had affected the former owner which led to him eventually selling the business. At [49], the Tribunal stated that it considered it would have been "preferable" for the Department to have sought further information from the business proprietor before it proceeded to make its decision. 52 It was in those circumstances that the second Tribunal correctly said, at [52], that it was not in a position to remedy that procedural misstep at the time of its decision, as the demands of the business combined with the former proprietor's poor health necessitated the sale of the business in May 2014. 53 In those circumstances, the Tribunal, in my view, properly, concluded that it did not have the legal power to waive mandatory criteria prescribed for the class of visa applied for. 54 The Tribunal, at [54], noted that the only person who could waive the criteria was the Minister under s 351 of the Act. It was in those circumstances that the Tribunal also noted that Ms Kaur's representative had not formally requested the Tribunal to refer the case to the Department for consideration by the Minister. The Tribunal then noted that the case did not come within the strict guidelines in any event. 55 In all of those circumstances, there was no administrative remedy that the second Tribunal could provide. 56 As unfortunate as the sequence of events seems to have been, no jurisdictional error is indicated on the Tribunal's part, nor is any error indicated by the primary judge's judicial review of that decision. 57 In those circumstances, because the prospects of any appeal are nil, the application for leave to appeal must be dismissed. Orders 58 The appropriate orders are as follows: (1) The application be dismissed. (2) The applicants pay the first respondent's costs to be taxed, if not agreed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 12 May 2016