Bajaj v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 634

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bajaj v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 634

File number(s):

SYG 1213 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

9 August 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – whether the applicant denied procedural fairness – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 349A

Migration Regulations 1994 (Cth)

Cases cited:

Hasan v MIBP [2016] FCCA 1049

Singh v MIBP [2017] FCAFC 105

Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267

SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

WZAVW v Minister for Immigration and Border Protection [2014] FCCA 612

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

3 August 2022

Date of hearing:

3 August 2022

Place:

Parramatta

Counsel for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Sheedy of Sparke Helmore appeared on behalf of the First Respondent.

ORDERS

SYG 1213 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BEHRAUM BAJAJ

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	9 AUGUST 2022

THE COURT ORDERS THAT:

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

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the sum of $6,500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a citizen of India. The applicant previously resided in Sydney before moving to Perth, where The Dart and Feather Pty Ltd (“the nominator”) was located.

2. The applicant applied for a Regional Employer Nomination (Subclass 187) visa (“Regional Employer visa”) on 27 February 2018. On 14 January 2021, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant the applicant’s Regional Employer visa.

3. On 1 February 2021, the Applicant sought merits review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 1 June 2021, the Tribunal affirmed the delegate’s decision not to grant the applicant his Regional Employer visa.

4. The applicant now seeks judicial review of the Tribunal’s decision.

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision is relatively brief. It begins by outlining the background to the applicant’s visa application. At the time of the applicant’s application, Class RN contained one subclass, namely Subclass 187 (Regional Sponsored Migration Scheme). The criteria for a subclass 187 are outlined in Part 187 to Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant sought the Regional Employer visa in the Direct Entry stream to work in the nominated position of Café or Restaurant Manager.

6. Paragraphs 8 and 9 of the Tribunal decision record outline the requirements of cl 187.233 to Schedule 2 of the Regulations, being the relevant legislative requirements for the grant of the Regional Employer visa.

7. At paragraph 10 of the decision record, the Tribunal notes that on 11 May 2021 the applicant was invited to comment or respond to information. The particulars of the information stated that the nominated position by the nominator was refused by the delegate and no review of that decision had been sought, meaning that the nominated position had not been approved.

8. The applicant responded to the Tribunal’s invitation on 25 May 2021 by providing a statement, his Certificate of Enrolment (“CoE”) from 2018 and his CoE from April 20 September 2021.

9. At paragraph 12 of the decision record, the Tribunal states that the requirements of the Direct Entry stream were that the position to which the visa application relates is a nominated position. These requirements could not be satisfied by a later nomination by a different employer or by a nomination in respect of the same position made by the same employer: (see; Hasan v MIBP [2016] FCCA 1049; Singh v MIBP [2017] FCAFC 105). When a nomination has been refused, cl 187.233 to Schedule 2 of the Regulations is not met.

10. At paragraph 13 of the decision record, the Tribunal notes that at the Tribunal hearing the application was advised that his review could not succeed and that he should consider another visa application.

11. At paragraph 14 of the decision record, the Tribunal found that the nomination had not been approved, therefore cl 187.233 to Schedule 2 of the Regulations was not met. At paragraph 15 of the decision record, the Tribunal further found that as the applicant had only sought entry through the Direct Entry stream and these requirements were not met, the decision under review had to be affirmed.

    GROUNDS OF JUDICIAL REVIEW

12. The Applicant relies on two ground of judicial review contained within an Initiating Application filed with the Court on 24 June 2021. The grounds are reproduced below as they appear in the Initiating Application (errors as per the application):

    1.   The AAT failed to take the facts of application without givign me sufficient opporunity to justify my claim.

    2.   The AAT determined that they affirmed the decision not to gant me a regional employer nomination visa, i pleas a court hearing to set aside the tribunal decision.

    APPLICANT’S SUBMISSIONS

13. The applicant appeared before the Court unrepresented by telephone.  The applicant did not request the assistance of an Interpreter. The Court was satisfied that the applicant was able to effectively participate in the hearing.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been served upon him.

14. At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review, and the difference between the two types of review.  The Court also explained the process by which the hearing would be undertaken.

15. Notwithstanding Court orders, no written submissions or other material was supplied by the applicant in support of his case.  The applicant told the Court that it was not his fault. The applicant expected the employer nomination to be successful. The applicant would like an opportunity for the matter to be reconsidered.

16. Following the First Respondent’s oral submissions, the applicant was asked if he wished to say anything in response. The applicant answered “No”.

    CONSIDERATION

17. Ground one consists of an un-particularised assertion that the Tribunal failed to take the facts of the application into account.  The failure to sufficiently particularise the ground is sufficient to warrant its dismissal on this basis alone: (see; WZAVW v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]).

18. In any event, as noted by the first respondent, the sole question before the Tribunal was whether the applicant satisfied the criteria for the visa prescribed by cl 187.212 and 187.223 of Schedule 2 to the Regulations. The fact that the employer sponsors nomination had been refused meant that the decision made by the Tribunal was the only decision that was open to it. As noted by the first respondent, the applicant’s response to the s 359A of the Migration Act 1958 (Cth) (“the Act”) letter did not challenge the fact that the employer sponsor’s nomination had been refused. There is nothing to suggest that the Tribunal failed to give the applicant an opportunity to “justify his claims”. Ground one has no merit.

19. Ground two is not a proper ground of judicial review. It fails to identify any jurisdictional error on the part of the Tribunal and has no merit.

20. The first respondent notes that, even if the applicant could establish a jurisdictional error on the part of the Tribunal (which is not admitted), it would be futile to emit the matter back to the Tribunal for redetermination as no useful result could ensue: (see; SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [28] – [29]). The criteria in cl 187.223 of the Regulations, can only be satisfied by reference to the nomination declared in the visa application: (see; Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267 at [88] – [90]). In other words the Tribunal would be required to come to the same outcome.

    CONCLUSION

21. As no jurisdictional error has been identified, the matter is dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       9 August 2022