Athauda Arachchige Dona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 187

FEDERAL CIRCUIT COURT OF AUSTRALIA

Athauda Arachchige Dona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 187

File number:

SYG 2174 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

4 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal breached the rules of natural justice – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal was biased in its decision – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 476

Migration Regulations 1994 (Cth), sch. 2

Number of paragraphs:

22

Date of hearing:

4 February 2021

Place:

Sydney

Counsel for the Applicant:

In person

Solicitor for the First Respondent:

Mr A Gardner

ORDERS

SYG 2174 of 2019

BETWEEN:

CHANDRIKA NIROSHANI KUMARI ATHAUDA ATHAUDA ARACHCHIGE DONA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	STREET
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is dismissed.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 July 2019, affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa (“the visa”).   

2. The applicant is a citizen of Sri Lanka and applied for the visa on 30 May 2017. 

3. The Delegate found that the applicant did not meet the criteria for the grant of the visa on 4 March 2019. The applicant applied for review on 22 March 2019. The applicant was invited to attend a hearing before the Tribunal by a letter dated 24 June 2019. The applicant attended the hearing to give evidence and present arguments. 

4. The Tribunal in its reasons identified the background to the visa application and identified the requirements of cl 187.233 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) that the applicant must have an approved nomination for the relevant position.  It is apparent from the Tribunal’s reasons that the Tribunal raised that essential requirement with the applicant in the course of the hearing, and that the nomination had been refused. 

5. The Tribunal referred to the applicant’s explanation that she had not been kept aware of that position. That did not, however, give rise to there being an approved nomination. In those circumstances, the Tribunal found that an essential requirement had not been met in respect of the approved nomination, and that the applicant did not meet cl 187.233(3), and affirmed the decision under review.

   BEFORE THE COURT

6. These proceedings were commenced on 22 August 2019. On 11 October 2019, a judge of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents have been filed. 

7. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing, and the applicant confirmed that she understood the nature of the hearing.

8. The applicant then sought an adjournment on the grounds that she wished to obtain legal representation. The Court did not find the applicant’s explanation as to why she had not had an adequate opportunity to obtain legal representation if she was able to do so, to be satisfactory. It is apparent that these proceedings were commenced on 22 August 2019. The applicant has had ample opportunity to obtain legal representation if she was able to do so. The Court is not in those circumstances satisfied that there would be any utility in granting an adjournment. Further the Court has taken into account the want of merit in the substantive application. In these circumstances, the Court is satisfied an adjournment is not warranted in the interest of the administration of justice. For these reasons, the Court made the order dismissing the applicant’s oral application for an adjournment.

9. The applicant in substance put submissions as to her circumstances for staying in Australia, which in essence invited impermissible merits review. This Court has no power to review the merits, nor does this Court have any power to determine the matter on compassionate or discretionary grounds.

10. To the extent that the applicant complained about her agent, there is no evidence before the Court to suggest that there is any fraud by the agent, let alone any fraud that disabled the Tribunal from conducting the review required according to law. No jurisdictional error arises by reason of anything submitted by the applicant orally.

    THE GROUNDS

11. The grounds in the application are as follows:

    (1)The Tribunal failed to consider that applicants personal circumstances and to apply the relevant laws correctly.

    (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

    GROUND 1

12. In relation to ground 1 which refers to the applicant’s personal circumstances, the Tribunal did not have a discretion to waive the essential criteria. In the absence of an approved nomination, the applicant’s application to the Tribunal was bound to fail. The Tribunal correctly identified the relevant law and there is not a proper basis to find that the Tribunal misapplied the applicable law.

13. No jurisdictional error is made out by ground 1.

    GROUND 2

14. In relation to ground 2, the Tribunal complied with the requirements in respect of the hearing requirements under the relevant part of the Act, and the applicant attended the hearing, and on the face of the material before the Court, the applicant had a real and meaningful hearing. The Tribunal raised with the applicant the issue in terms of the requirement for an approved nomination. There is no basis to find that the Tribunal breached any rule of natural justice. 

15. No jurisdictional error is made out by ground 2.

    GROUND 3

16. In relation to ground 3, this in substance appears to be a repetition of ground 2. In the absence of particulars, the ground is incapable of making out any relevant error. On the face of the evidence before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review and the decision making. 

17. No jurisdictional error is made out by ground 3.

    GROUND 4

18. In relation to ground 4, the Tribunal correctly identified the relevant law, and there is no basis to find that the Tribunal failed to correctly apply that relevant law in respect of the applicant’s visa application. The applicant’s disagreement with the adverse finding does not identify any jurisdictional error. The Tribunal provided reasons in support of the decision affirming the Delegate’s decision. There is no apparent basis to contend that the decision was not made and notified in accordance with the Act. The absence of particulars as to the alleged mandatory procedure that was said not to have been observed means this ground identifies no jurisdictional error.

19. No jurisdictional error is made out by ground 4.

    GROUND 5

20. In relation to ground 5, the assertion of an improper exercise of power, unparticularised, is incapable of making out any relevant error. Insofar as that ground is seeking to allege bias, no case of bias is made out. The adverse findings by and reasoned decision of  the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal conducted the review required under the Act with an open mind, reasonably capable of persuasion as to the merits. 

21. No jurisdictional error is made out by ground 5.

22. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       4 March 2021