Aulakh v Minister for Immigration

[2015] FCCA 2290

FEDERAL CIRCUIT COURT OF AUSTRALIA

AULAKH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2290

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Regional Employer Nomination (Permanent) (Class RN) visa – whether the Tribunal failed to have regard to relevant material – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: AMADEEP SINGH AULAKH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1282 of 2015

Judgment of: Judge Street

Hearing date: 24 August 2015

Date of Last Submission: 24 August 2015

Delivered at: Sydney

Delivered on: 24 August 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr E Elliott
DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1282 of 2015

AMADEEP SINGH AULAKH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction at s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 24 April 2015 affirming a decision of the delegate not to grant the applicant a Regional Employer Nomination (Permanent) Class RN visa. The applicant is a citizen of India who applied for a said visa on 7 November 2013. On 20 March 2014 the delegate wrote to the applicant and informed the applicant action required:

   Action Required

   The nomination submitted to the Department by SAHIL NEELA PTY LTD (TRN EGO48FMOO8) lodged on 07/11/2013, was refused on 20/03/2014. Unfortunately this means that your visa application cannot be approved. There are two options you can now take in relation to this decision:

2. That information conveyed to the applicant that the criteria for meeting the applicant could not be met.  It was in those circumstances that the delegate on 6 June 2014 made an adverse determination in relation to the applicant on the grounds that the criteria under cl.187.233 had not been met.  The particular delegate set out the relevant provision at court book 42.  The applicant was invited to attend a hearing by a letter dated 4 February 2015, which hearing took place on 12 March.  The applicant was represented by a migration agent.

3. The Tribunal noted:

   9. For applicants in the Direct Entry stream, cl.187.233 requires that the position to which the application relates be the subject of an application for approval of a nominated position under r.5.19(4)(h)(ii) of the Regulations (that is, a Direct Entry nomination in regional Australia), or under r.5.19(4) as it was prior to 1 July 2012 (that is, a Regional Sponsored Migration Scheme nomination). The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

   10. In addition, this criterion also requires that:

    the person who will employ the applicant was the nominator in the application for approval

    the nomination has been approved and has not been subsequently withdrawn

    the position is still available to the applicant, and

    the visa application was made no more than six months after the nomination of the position was approved.

4. It was in those circumstances where the Tribunal noted that the Tribunal affirmed the decision to refuse the related nomination, and hence the criteria under cl.187.233 was not met.  It was in those circumstances the Tribunal said:

   12. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

5. The application identifies the following grounds:

   1. Failed to take into account relevant consideration.

   2. Took into account of irrelevant information as key part of the decision.

6. There is no relevant consideration is articulated or particularised. The reasons given for the Tribunal are clear and there is not substance in relation to ground 1 of the application.  To the extent that ground 2 asserts the taking into account of irrelevant information, no information said to be irrelevant is identified, and ground 2 fails to make out any jurisdictional error.

7. The applicant from the bar table submitted that he had been unable to get a lawyer and that he had been told that there is no jurisdictional error disclosed in his application, and that was a problem that he faced in trying to get assistance.  The Court provided the applicant with the opportunity to discontinue the proceedings if he saw fit, albeit that the cost consequence was of a small if any difference in relation to that course.  Nothing said by the applicant or in the application discloses any arguable jurisdictional error.  The application is dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 August 2015