Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2164 (27 July 2021)

Last Updated: 29 September 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2164

File number(s):	ADG 225 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	27 July 2021
Catchwords:	MIGRATION – review of administrative appeals decision – whether the AAT had jurisdiction to hear a review – jurisdictional error established – writs issued but no remittal back to the AAT
Legislation:	Migration Act 1958 (Cth), s 338
Number of paragraphs:	20
Date of last submission/s:	27 July 2021
Date of hearing:	27 July 2021
Place:	Brisbane
Counsel for the Applicants:	the Applicants appearing on their own behalf
Solicitor for the First Respondent:	Mr Ellis of Australian Government Solicitor

ORDERS

		ADG 225 of 2018
BETWEEN:	YADVINDER SINGH First Applicant RAMANDEEP KAUR Second Applicant ABHIJEET SINGH (and another named in the Schedule) Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1. The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. A writ certiorari issue quashing the decision of the second respondent made on 14 May 2018.

3. There be no order as to costs.

4. There be no order to remitting the matter.

IT IS NOTED:

1. It is noted that given the Tribunal had no jurisdiction to review the delegate’s decision, the Court should not remit the matter to the Tribunal for re-consideration.
2. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1 On 14 May 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, Yadvinder Singh, a temporary business entry visa. On 7 June 2018, the Applicant asked this Court to review the decision.

2 Mr Singh has been in this country for quite some time – he tells me 14 years – and he has been living here with his wife and two children, who are the secondary Applicants to Mr Singh’s application.

3 The background is that the Applicant was applying for what was then known as the subclass 457 visa. He had a sponsor, HMV Engineering and Precast Proprietary Limited. They had applied for approval as a sponsor/employer. Their application for that nomination was refused.

4 The occupation, under which the Applicant had applied, was a technician and trade worker, which had the ANZSCO number of 399999. After the Applicant had made the application, there were changes that were made to the skilled occupations that could be nominated and approved for the purposes of a subclass 457 visa. The position that the Applicant had applied for had been removed.

5 This meant that there were serious deficiencies with the visa application. Firstly, that there was no approved sponsor, and, secondly, there was no approved nominated occupation.

6 The delegate had made a decision that the Applicant was not the subject of an approved nomination that met the requirements of clause 457 and, therefore, refused the visa. The Applicant asked the Administrative Appeals Tribunal to review the matter. I will get to the review in a second.

7 What occurred is that the AAT went ahead and reviewed the decision under s 338 of the Migration Act 1958 (Cth) (“the Act”), Section 338(2)(d) states:

(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non-citizen a visa is a Part 5-reviewable decision if:
d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non-citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non-citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the regulations--the non-citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
...where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and the visa is a temporary visa of a kind prescribed for the purposes of this paragraph.

8 The 457 visa was a visa that was a temporary visa of a kind that was prescribed for the purposes of this paragraph. That meant that the AAT only had jurisdiction to review the decision of the delegate if the Applicant did have a sponsorship from an approved sponsor or that the decision to refuse to grant that sponsorship had been the subject of a present appeal. That is, in (ii):

...an application for review of a decision not to approve the sponsor has been made but, at the time the application to review the decision to refuse the grant of the visa is made review of the sponsorship decision is pending.

9 There was no application to review that sponsorship decision at all.

10 This meant that the AAT, pursuant to s 338(2)(d)(ii) of the Act, had no jurisdiction to review the matter. Nevertheless, the AAT did review the application. Having come to the inevitable conclusion that the nominated occupation of the Applicant was not included on the list of specified occupations and, therefore, did not correspond to an occupation under the requirements of the Regulation, there was no current approved nomination of an occupation in place.

11 Therefore, the Applicant could not have met the criteria for the visa. That, in turn meant that the requirements of the visa were not met and that the decision of the delegate had to be affirmed.

12 The Applicant gave a fairly lengthy submission which took the form of grounds for the application. I will read it fully into the record:

1. I wish to submit my case for review against the decision that has been made by the DIBP to refuse the visa application for visa subclass 457 as I fail to meet the relevant criteria for the approval of this nomination as per Australian migration law. My case was heard in AAT but the decision was affirmed.
2. I submitted my application under Technicians and Trade Workers nec – 399999, as proposed occupation, from my sponsor, HMV ENGINEERING AND PRECAST PTY LTD. When my application was in pipeline, due to change in migration rules my nominated occupation was taken out of the skill list and hence was not eligible occupation anymore for the applied visa grant because I did not satisfy paragraph 2.72(10) of the Regulations and did not meet the prescribed criteria for approval of nomination Subclass 457, Temporary Work visa.
3. The situation was now beyond my control due to then present circumstances. I was the victim of “Change in rule” where I was then working under the same occupation from last 2.5 years. Therefore, my nomination application was genuine but how drastically the changes affected my career and my family’s future was not considered by the department neither I was given any opportunity to be considered for any other relevant visa.
4. I applied for my application fulfilling the entire requirements but sudden change in rules while processing had impacted my application, which was not in my hands. Therefore, as per natural justice of this situation I should be considered for the grant for any related visa, which allows me to apply for any the visa under skill list, or there should be other provision to accommodate my situation.
5. However, it is worth that how the position support the businesses and how the business has benefited from my existing position and how it will suffer in replacing my position with significant skills shortages in the proposed sector.
6. Hence, I wish to submit that the decision of the Immigration Minister has had a significant impact not only in my case but also on the business and nominated trade in South Australia.
7. I request you to consider my case as the business has a genuine and ongoing need for the position. I should be given the opportunity to re-submit the visa application onshore in association with this or any other related nomination and visa application.

13 As can be seen from those grounds, there was no attempt to even delineate any jurisdictional error. The Applicant, who has appeared in person before me today, continued with that same theme; that is, that everything that happened was not his fault that he had actually done everything that he was supposed to do.

14 This has become even starker when, as I have already said, the Applicant has been in the country for 14 years. He has worked hard. He pays his tax. His children have grown up here and are still being educated in the Australian education system. It is even worse when one considers that the Applicant made his application to the Tribunal, it would seem, in about September 2017.

15 If it were that the Tribunal had been awake to this at that time, the Tribunal could simply have told the Applicant there and then that the Tribunal did not have jurisdiction to deal with the matter. Unfortunately, it did not do that, and the Applicant went through the process, with a decision having been made in May 2018 and an application to this Court in June 2018.

16 It has taken over three years for the matter to actually be heard, which is something for which the Federal Circuit Court needs to apologise to the Applicant. What this means is that for nearly four years, the Applicant has been in a form of limbo and has suffered a great deal of stress where it could have easily been truncated if the Tribunal had realised the limits to their jurisdiction back in September 2017.

17 This is why the Applicant has great sympathy from the Court, but the reality is that there is nothing that the Court can do. The Court can only review a decision of the Tribunal that has been properly made. This decision was not properly made because there was no jurisdiction.

18 I do have to quash the decision of the Tribunal because it was made ultra vires. There is no utility at all in sending the matter back to the Tribunal. That is because the Tribunal had no jurisdiction to hear the matter, and the lawful position of the Applicant is the same that obtained when the delegate made that decision.

19 What this means for Mr Singh’s status in Australia is not for me to comment on. It would seem that Mr Singh has been on a bridging visa ever since he had made the application to the Tribunal in September 2017, but I do not have any evidence of that. Unfortunately, it will be for those instructing Mr Ellison to inform the Department of this decision, and it is for them to contact Mr Singh as to what should happen next, or Mr Singh can take the bull by the horns and talk to the department himself, but the situation is as I have said.

20 What this means is that, in many ways, the Applicant is successful but not truly successful. In that situation, it seems to me that the appropriate orders are to rename the Minister and give him his proper current title, issue a writ of certiorari quashing the decision of the AAT that was made on 14 May 2018 and that there be no order as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated: 27 July 2021

SCHEDULE OF PARTIES

	ADG 225 of 2018
Applicants
Fourth Applicant:	JASMINE SINGH