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

[2021] FCCA 1891

FEDERAL CIRCUIT COURT OF AUSTRALIA

Aggarwal v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1891

File number(s):

SYG 4053 of 2017

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Subclass 187) Visa – where the applicants did not have an approved nomination before the Tribunal – whether typographical errors by the Tribunal raise an arguable case of relevant error – where the first applicant’s submissions invite impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth), ss 359AA, 368(2), 375, 476

Migration Regulations 1994 (Cth), cl 187.233

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

24

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the respondent:

Mr J Pipolo, Mills Oakley

ORDERS

SYG 4053 of 2017

BETWEEN:

NISHANT AGGARWAL

First Applicant

NIDHI MALHOTRA

Second Applicant

OMAIRA AGGARWAL

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The first and second applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 November 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants a Regional Employer Nomination (Subclass 187) Visa (“the Visa”).

2. The first applicant is a citizen of India and the second applicant is his wife who has joined as a member of their family unit. The third applicant is their daughter in respect of whom there has been a litigation guardian order made.

3. On 26 February 2016, the delegate found that the applicants failed to meet the criteria for the Visa, given the want of an approved nomination as required under cl 187.233 of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 21 March 2016, the applicants applied to the Tribunal for review.

5. The applicants were invited to and attended a hearing on 22 November 2017. The Tribunal identified that, during the hearing, it raised with the applicants the want of an approved nomination consistent with s 359AA of the Act. The Tribunal found that the applicants did not meet the criteria under cl 187.233(3) of the Regulations because of the absence of an approved nomination.

   BEFORE THE COURT

6. These proceedings were commenced on 22 December 2017. The matter was fixed for a show cause hearing today, 16 August 2021.

7. At the commencement of the hearing, the Court explained to the first applicant the nature of the show cause hearing.

8. The first applicant identified his personal circumstances and sought to explain why it was that he did not have an approved nomination at the time of the Tribunal hearing. The first applicant contended that, subsequent to the Tribunal’s decision, he had an approved nomination.

9. An approved nomination obtained after the hearing cannot meet the criteria that the applicant had to meet at the time of hearing before the Tribunal. In substance, the first applicant’s oral submissions invite impermissible merits review.

10. The first applicant has also filed two lots of submissions dated 30 April 2018 and 10 December 2018 which, for convenience, the Court admitted into evidence, subject to relevance. Both submissions erroneously appeared to assume that the Court can determine the matter on discretionary or compassionate grounds. The Court has no power to do so.

11. The Tribunal was clearly correct in finding that the first applicant did not have an approved nomination. In substance the applicant’s submissions invite impermissible merits review.

12. The first applicant has also filed an affidavit on 31 July 2021. In that affidavit, the first applicant seeks again to engage with explaining the circumstances as to why there was not an approved nomination. That explanation does not identify an arguable case for the relief claimed, and again, appears to erroneously assume that the Court can determine the matter on compassionate or discretionary grounds, and invites impermissible merits review. Nothing in the first applicant’s affidavit filed on 31 July 2021 identifies an arguable case for the relief claimed.

    THE GROUNDS

13. The Grounds in the application are as follows:

    Ground 1

    1.THAT MY NOMINATED IS GENUINE.

    Ground 2

    2.THAT I HAVE DONE ADVANCE DIPLOMA HOSPITALITY.

    Ground 3

    3.THAT I STUDIED THE DECISION LETTER TAKEN BY MR. ANTOINETTE YOUNES MEMBER OF AAT AND I AM UNSATISFIED WITH HIS DECISION. WHEN GONE THROUGH WITH HIS DECISION I FEEL THAT HE NOT GONE THROUGH WITH MY APPLICATION PROPERLY. IN THE DECISION LETTER HE MENTIONED DECISION DATE 24 DEC 2017 BUT ACTUAL DATE OF DECISION WAS 24 NOV 2018. THAT IS WHY I AM REQUESTING HAVE REVIEW ON MY APPLICATION.

    GROUND 1

14. In relation to Ground 1, this is an assertion as to the nature of the first applicant’s application, and does not engage with the absence of an approved nomination, which was an essential criteria. No arguable case for relief claimed is disclosed by Ground 1.

    GROUND 2

15. Ground 2 also seeks to identify the first applicant’s personal circumstances. Ground 2 does not identify an arguable case for the relief claimed.

    GROUND 3

16. Ground 3 also seeks to identify the first applicant’s disagreement with the decision, which does not identify an arguable case for the relief claimed.

17. No error arises from the typographical error on the cover page of the Tribunal’s decision record. The decision was taken to be made at the date and time the written statement has been made, pursuant to s 368(2) of the Act. The incorrect reference in the delegate’s decision does not identify any matter within this Court’s jurisdiction or give rise to an arguable case of relevant error by the Tribunal.

18. Insofar as the first applicant’s submissions contend that the Tribunal was biased, there is no basis that has been identified for any such allegation, which must be clearly alleged and properly approved. On the material before the Court, the Tribunal approached the application for review with an open mind, reasonably capable of persuasion as to the merits.

19. Further, on the material before the Court, the adverse findings before the Court are not conduct by reason of which a fair minded observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The first applicant’s assertion of bias or prejudgment is not made out. 

20. The applicants had to have an approved nomination in order to meet the essential criteria, in respect of which the Tribunal had no discretion and could not waive the same.

21. The Court notes that there was a reference to a certificate, erroneously referred to as being under a different section of the Act. The typographical error does not give rise to an arguable error. Given the disclosure of the certificate, that the applicants suffered no practical injustice in the conduct of the review, by reason of the existence of or the subject matter of the certificate.

22. No arguable case of relevant error is disclosed by the application. 

23. The Court is not satisfied the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

24. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-four (24) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       27 September 2021