AMAN v Minister for Immigration and Anor

[2020] FCCA 2097

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMAN v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2097

Catchwords:
MIGRATION – Application for Regional Employer Nomination (Permanent) (Class RN) Visa – failure by applicant to satisfy primary criteria as required pursuant to cl. 187.233 of Schedule 2 to the Regulations – visa refused by Administrative Appeals Tribunal – no jurisdictional error on the part of the Tribunal – application for review dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch. 2, cl. 187.233, cl. 187.233(3).

Cases cited:

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

Applicant: AMAN AMAN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 10 of 2020

Judgment of: Judge Egan

Hearing date: 30 July 2020

Date of Last Submission: 30 July 2020

Delivered at: Brisbane

Delivered on: 31 July 2020

REPRESENTATION

Applicant: Self-represented

Counsel for the First Respondent: Mr Kaplan

Solicitors for the First Respondent: Clayton Utz

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The application for review filed on 9 January 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 10 of 2020

AMAN AMAN

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant is a citizen of the Republic of India who made application for a Regional Employer Nomination (Permanent) (Class RN) Visa on 20 September 2017.

2. A delegate of the Minister refused to grant the applicant the visa on 8 February 2019 on the basis that there was no approved nomination relating to his visa application. The applicant then applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

3. On 18 December 2019, the Tribunal conducted a hearing at which the Tribunal had regard to PAYG Statements for 2018 and 2019 which evidenced that the applicant had worked as a cook for a company named B & D Partners Pty Ltd during those years. At [17] of its reasons, the Tribunal noted that though it had considered such PAYG documentation, the existence of such documentation did not establish that the applicant was the subject of an approved nomination made by B & D Partners Pty Ltd. Later that day the Tribunal affirmed the decision of the delegate to refuse to grant the visa.

4. On 9 January 2020 the applicant filed an originating application for review of the decision of the Tribunal. The grounds for review were as follows:

   “Grounds of application

   1. The AAT Member (the “Member”) did not consider all information provided by the applicant

   2. The Member based his decision on historical and irrelevant facts rather than the evidence provided

   3. That cl. 187.233 of Schedule 2 to the Migration Regulations 1994 was indeed satisfied

   4. An affidavit providing evidence is attached to this application

   5. Further evidence will be provided at or before the final hearing”

5. An applicant for the visa must satisfy the criteria as set out in cl. 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 187.233 provided as follows:

   “187.233

   (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.”

6. It was clear that at the time of the hearing before the Tribunal, the Minister had not approved any nomination as required by cl. 187.233(3). The nomination application which had been made by B & D Partners Pty Ltd in respect of the applicant had been refused. In those circumstances, the applicant had failed to meet the relevant criteria which were required to be met for the grant to him of the visa.

7. The Tribunal did not err in finding that the applicant had no right to be granted the visa.

8. After the hearing before the Tribunal, the applicant provided various pay slips to the Tribunal. [1] Even if the Tribunal had not considered the content of such pay slips before it handed down a decision, and it was in error in failing to do so, such failure could not have realistically resulted in a different decision being made by the Tribunal. A primary criteria required to be met was unsatisfied.

   [1]        Court Book (CB) pages 99 – 118 inclusive.

9. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

   “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

   [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

10. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

11. The application for review is without merit and is dismissed.

12. The Court will hear the parties as to costs.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: SW

Date: 31 July 2020