Bandari v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FCA 1224
•13 October 2023
FEDERAL COURT OF AUSTRALIA
Bandari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1224
Appeal from: Bandari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 225 File number(s): VID 186 of 2022 Judgment of: BEACH J Date of judgment: 13 October 2023 Catchwords: MIGRATION – appeal – no point of principle – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 359A, 359B, 363
Migration Regulations 1994 (Cth) sch 2 cl 186.223
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 13 October 2023 Counsel for the Appellants: The first appellant appeared for himself and on behalf of the second and third appellants. Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice save as to costs and otherwise did not appear ORDERS
VID 186 of 2022 BETWEEN: NARESH BANDARI
First Appellant
SANDHYA RANI GUDIMALLA
Second Appellant
AARUSH BANDARI
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
13 OCTOBER 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The appeal be dismissed.
3.The appellants pay the first respondent’s costs of and incidental to the appeal fixed in the amount of $4000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BEACH J
The appellants appeal from the judgment of the primary judge below who dismissed their application for judicial review of a decision of the Tribunal which had affirmed a decision of a delegate of the Minister to refuse to grant to the first appellant an Employer Nomination (Permanent) (Class EN) (Subclass 186) visa.
On 10 October 2023, the first appellant made a written application to adjourn today’s hearing which I refused. He sought a delay for 1.5 years which was excessive. Moreover, his disclosed circumstances were unlikely to change in the short term if I had granted a more limited adjournment. Further, my preliminary review of the material a few days ago indicated that the merits of the appeal were not strong, to say the least.
For the reasons that follow, I would dismiss this appeal. There is no substance to the challenge to Judge Kendall’s cogently expressed reasons. Let me begin with the background.
On 16 December 2016, the first appellant applied for a visa in the temporary residence transition stream and he nominated his position as being a wall and floor tiler. The second and third appellants were included in the visa application as members of the family unit. The relevant sponsor was Konig Constructions Pty Ltd.
On the same day, the sponsor submitted a nomination application to the relevant department.
On 7 June 2017, a delegate of the Minister refused the sponsor’s nomination. Because the visa application was linked to the refused nomination the delegate wrote to the first appellant explaining that this refusal was adverse to the visa application and inviting his comment.
On 23 June 2017, the sponsor applied to the Tribunal for a review of the nomination refusal decision.
On 11 July 2017, the delegate refused the visa application on the basis that the first appellant was not the subject of an approved nomination and therefore did not satisfy cl 186.223 in Schedule 2 of the Migration Regulations 1994 (Cth). I should note here that the criteria in cl 186.223 is expressed in the following terms:
186.22—Criteria for Temporary Residence Transition Stream
…
186.223
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b) in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled)) visa; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(3A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4) The position is still available to the applicant.
(5)The application for the visa is made no more than 6 months after the Minister approved the nomination.
On 26 July 2017, the appellants applied to the Tribunal for a review of the delegate’s decision to refuse the visa application.
On 1 November 2017, the Tribunal affirmed the primary decision concerning the refusal of the nomination.
On 1 November 2017, the Tribunal wrote to the first appellant pursuant to s 359A of the Migration Act 1958 (Cth) to invite him to comment on information that on that day the Tribunal had affirmed the delegate’s decision to refuse the sponsor’s nomination.
On 14 November 2017, the first appellant responded requesting time to contact his employer. The Tribunal agreed to grant the first appellant an extension of time and requested that he respond to the invitation by 29 November 2017.
On 28 November 2017, the first appellant responded requesting more time to contact his employer.
On 1 December 2017, the Tribunal in reliance upon s 359B(4) refused the first appellant’s further request for an extension of time to respond to the invitation. However, the Tribunal advised that it would adjourn its review under s 363(1)(b) until 6 December 2017, to allow the first appellant to provide any submissions and evidence in support of his application. The first appellant did not respond.
On 11 December 2017, the Tribunal affirmed the delegate’s decision concerning the refusal of the visa. The Tribunal recorded that it had affirmed the decision to refuse the sponsor’s nomination on 1 November 2017. The Tribunal found that as such, the first appellant did not have an approved nomination and did not meet the requirements of cl 186.223. The Tribunal affirmed the decision to refuse the visa on that basis.
On 2 January 2018, the appellants applied to the then Federal Circuit Court of Australia for judicial review of the Tribunal’s decision affirming the delegate’s decision to refuse the visa.
They advanced four grounds in the form of submissions which merely summarised the factual background to the matter, sought to blame the employer for not responding to the Tribunal’s s 359A invitation, and requested that the Court review their case.
But the appellants’ grounds rose no higher than impermissible merits review. Further, in circumstances where it was not in dispute that the sponsor’s nomination application was refused, the Tribunal did not err. The Tribunal made the only decision open to it.
On 31 March 2022, the primary judge dismissed the application for judicial review.
He held that grounds one, two and four did not reference or address the issue of jurisdictional error. He noted that the concerns raised in the accompanying affidavit did not assist him to identify any error in the Tribunal’s decision. Rather what was provided was a narrative of events leading up to and after the rejection of the visa application. The primary judge considered that these grounds of review sought impermissible merits review and dismissed those grounds.
As to ground three, the primary judge held that there was no error in the Tribunal’s understanding or application of cl 186.233. In circumstances where there was no valid nomination before the Tribunal, his Honour held that the Tribunal came to the only decision that it could have reached. Accordingly, he held that no jurisdictional error arose and that ground three was not made out.
Moreover, even if there had been an error the primary judge held that remitting the matter to the Tribunal would be futile in any event in circumstances where the nomination application was refused by the delegate and the Tribunal and the sponsor had not sought judicial review of that refusal.
On 12 April 2022, the appellants filed a notice of appeal in this Court.
Their grounds of appeal, which have been expressed by reference to the first appellant, are as follows:
…
I have applied for 186 sub-class as I was eligible for.
At the time of the application I was eligible to apply for the 186 sub-class under the Migration act 1958.
After I applied for the 186 sub-class, Immigration department rejected my application stating that the cl.186.223 of the regulations is not met by me.
I have applied for review at the Administrative appeal tribunal at Melbourne registry, went to the hearing and gave the evidence to the best of I can supporting my appeal.
Despite trying hard, the tribunal member has denied my submission.
Then, I applied for Federal Circuit court and fought to an extent which I can. Federal Circuit court also rejected my application.
I am residing here in Australia since last 12 years which is quite a long period of time in one’s life, and i have done my education here, gained work experience, earned bread and butter with the hard-earned money, started a life here with the hope of becoming a resident. I am so petrified about the future of my family, especially my son who is born in Australia and I coundn’t guarantee him a future life here because of the rejection decision. I do believe my son has the right to live here as any other kid who is born here, and I request you to consider my case on the grounds of compassion.
I strongly believe that I haven't done anything unlawful and applied for the sub-class visa with the hope of acquiring the residency. I do not have any control over my employer and his communication and I haven’t done anything that would hinder my residency application. This is the prime reason for appealing the tribunal decision to the federal court for review.
…
In short, these grounds of appeal just summarise background to the appeal, refer to matters not directly relevant or otherwise amount to impermissible merits review. They fail to identify any jurisdictional error. But let me make a few points.
Given that it was accepted that the sponsor nomination was not approved, and in light of the proper construction of clause 186.223, the primary judge correctly determined that this was the only decision available to be made by the Tribunal given the mandatory requirement for the first appellant to lodge the relevant visa application with an approved employer nomination within 6 months of the Minister approving the nomination.
The wording of clause 186.223 reflects the lack of discretion afforded to the decision maker in determining whether or not the first appellant has an approved nomination. The first appellant either satisfies the mandatory criteria by applying for the visa with an approved nomination or does not.
The primary judge correctly determined that the refusal of the visa application was the only decision available to be made by the Tribunal. Therefore, no jurisdictional error arose.
But in any event, even if the appellants could make out some case of error, it would have been futile to remit the matter to the Tribunal. Clause 186.223 can only be satisfied by reference to the nomination declared in the first appellant’s visa application and cannot be one substituted later. Absent that nomination being approved, the first appellant cannot meet the requirements of clause 186.223, such that the only decision open to the Tribunal on remittal would be to again affirm the delegate’s decision.
I see no error in his Honour’s careful consideration of the matter or his ultimate determination. The appeal must be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 13 October 2023
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