Dalwadi v Minister for Immigration

[2020] FCCA 2822

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALWADI v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2822

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa – show cause hearing –  oral application for adjournment – adjournment application refused – where the application of the applicant’s nominator refused – refusal of nomination application fatal to visa application – no arguable case – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001, r. 44.12
Migration Act 1958, ss. 359A, 359C, 360(1), 360(2)(c), 360(3) 478, 479 and 486C
Migrations Regulations 1994, Clause 187.233

Cases cited:
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

Applicant: PRIYANKABEN VIPULKUMAR DALWADI

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1666 of 2018

Judgment of: Judge Blake

Hearing date: 1 October 2020

Date of last submission: 1 October 2020

Delivered at: Melbourne

Delivered on: 15 October 2020

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Solicitor Advocate for the Respondents: Mr Van Der Westhuizen

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Pursuant to rule 44.12 of the Federal Circuit Court Rules 2001, the application be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,737

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1666 of 2018

PRIYANKABEN VIPULKUMAR DALWADI

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 5 July 2017.  In that decision, the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

Background

1. The Applicant is an Indian national. She applied for the visa on

   
   

   2 December 2016.  She was nominated by Dulhan Exclusives Pty Ltd (‘the nominator’) to work in the nominated position of ‘Retail Buyer’. The nomination submitted by the nominator was ultimately refused.

2. On 5 July 2017 the Applicant was notified that the nomination had been refused. She was, inter alia, invited to comment on that information.

3. On 24 July 2017, the Applicant responded to the invitation to comment through her migration agent. The Applicant advised that she had sought review of the nomination refusal decision in the Tribunal, and requested that her application be placed on ‘hold’ pending the outcome of that review.

4. On 29 August 2017, a delegate of the First Respondent (‘delegate’) refused to grant the Applicant the visa on the basis that she did not meet the requirements contained within Clause 187.233 of Schedule 2 to the Migration Regulations 1994 (‘Regulations’).

5. On 13 September 2017, the Applicant applied to the Tribunal for review of the delegate’s decision.

6. On 7 May 2018, the Tribunal wrote to the Applicant, via her migration agent, inviting her to comment and provide information with respect to her application. Among other things, she was asked to provide written evidence demonstrating that she was the subject of an approved nomination. She was requested to provide this information by 21 May 2018. The Applicant did not respond to the Tribunal’s request.

7. The Tribunal subsequently affirmed the decision of the delegate, on

   
   

   22 May 2018 on the basis that the Applicant had not satisfied the requirements contained within Clause 187.233 of Schedule 2 to the Regulations.

8. On 13 June 2018, the Applicant filed the present application for judicial review of the decision made on 22 May 2018. While the Tribunal’s decision concerned the Applicant and her husband, it is only the Applicant which is a party to the present review application.

9. On 18 September 2019, the Court made, among others, the following procedural orders in relation to the matter:

   a)The matter be listed for a show cause hearing on a date to be advised.

   b)The Applicant file and serve any amended application, a supplementary Court Book, if any, and written submissions 28 days prior to the hearing.

10. The Minister filed a Court Book and written submissions. The Applicant did not file any documents pursuant to the orders of 18 September 2019. She did, however, file an unsworn affidavit on 25 September 2020 and other material seeking an adjournment of the hearing.

The Application for an adjournment

1. During the hearing, the Applicant pressed for an adjournment of the hearing.  I refused the application for the adjournment and indicated that I would include written reasons for doing so in my decision. What follows are those written reasons.

2. The Applicant sought an adjournment based on medical grounds.  In her affidavit, and before me, she said that she was suffering from deep stress, isolation and loneliness.

3. Among the materials submitted by the Applicant in support of her application for an adjournment were two medical reports from Dr Paul Grech, psychologist, and a Mental Health Treatment Plan. Dr Grech has opined that the Applicant suffers from significant anxiety and lowered mood, and presents as isolated and suffering from severe depression.  The Mental Health Treatment Plan describes the Applicant as suffering from adjustment disorder.

4. Having heard the Applicant, it is difficult not to feel some sympathy for her.  The Court has a wide discretion in relation to whether or not to grant an adjournment. Factors the Court generally takes into account include:

   a)ensuring that there is a just resolution of the proceeding for both parties and that the applicant and respondent have the opportunity to advance their case; 

   b)principles of case management and the avoidance of undue delay; and

   c)issues in relation to the need to avoid a waste of public resources.

5. I decided to refuse the Applicant’s request for adjournment.  My reasons for doing so were as follows:

   a)There is nothing in the medical evidence before me that indicates that the Applicant is unable to participate in any hearing.  In fact, the material submitted by the Applicant, such as it is, is to the contrary. The Mental Health Treatment Plan describes the Applicant’s speech as ‘normal’, her thought as ‘normal’, her perception as ‘good’ and her cognition as ‘good’.

   b)I accept that the Applicant is suffering from stress and anxiousness.  Two things might be said about this.  First, it is common for litigants, particularly those who are unrepresented, to experience stress in coming to Court.  Second, there is nothing in the medical information that has been provided to me that suggests that the Applicant’s feelings of stress or isolation would be resolved by adjourning the hearing.

   c)There is nothing in the medical information which indicates when, or how, any stress, anxiousness or severe sadness experienced by the Applicant may be resolved.  I was therefore being asked to adjourn the matter on health grounds without any indication as to when or how those health issues might be resolved.

   d)This is a matter that has been in this Court now for over two years.  The Applicant first filed her application for review on 13 June 2018.  Orders for the programming of the matter were made over one year ago in September 2019.  The Applicant has had ample opportunity to not only address any health issues, but to prepare for the hearing in a way which is sensitive to any health issues she experiences.

   e)Case management considerations do not support the grant of the adjournment.  As I have noted, the application has been in this Court for two years now.  This is a busy Court.  Any adjournment will mean that the case will not be heard for some time.  It also means that if the case is not dealt with today, the Court has lost the opportunity to deal with another case.  That is unacceptable in a Court which is recognised to have lengthy delays.

   f)Finally, the underlying merit of the Application for review is not strong.  I elaborate on this further below.  It is another reason for not granting the adjournment.

6. For all of the above reasons, I refused the request for an adjournment.

The Application for review

1. The Application filed on 13 June 2018 (‘Application’) contains a single ground of review as follows:

   ‘I strongly believe that during my nomination application (AAT 1715998) I believe that the member did not consider that my employer was not an accountant by profession and was reviewing on the grounds of not submitting the financial statements signed by the director and the accountant.

   Please note that the member did not consider the business demand.

   Please note that the member did not consider that my employer was never asked to submit the signed financial documents.

   Please note that I have attached another page with a request to consider.’

2. The Applicant did not meaningfully add to these grounds when she addressed me during the hearing.

3. The Applicant had applied for the visa. The principal issue before the Tribunal was, therefore, whether the Applicant was able to satisfy Clause 187.233 of Schedule 2 to the Regulations. The Tribunal clearly identifies this as the issue before it.

4. Clause 187.233 was, at the time, in the following terms:

   ‘(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:

   (i) subparagraph 5.19(4)(h)(ii); or

   (ii) subregulation 5.19(4) as in force before 1 July 2012; 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.

   (4A) 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.

   (5) The position is still available to the applicant.

   (6) The application for the visa is made no more than 6 months after the Minister approved the nomination.’

5. Of particular significance in Clause 187.233 is subparagraph (3). That subparagraph requires the Minister to have approved the nomination of the nominator.

6. In the present matter, the nomination of the nominator was refused by the Minister.  The Applicant was aware of this from at least 5 July 2017 when the delegate wrote to her informing her of this news, and inviting her to comment on it.

7. The refusal of the nomination of the nominator was fatal to the Applicant’s application for a visa. She could not satisfy the criteria set out in Clause 187.233(3).

8. The Tribunal clearly identified the issue above as the principal issue before it and addressed it.  The Tribunal, found, that the Applicant was not the subject of a nomination approved by the Minister and accordingly affirmed the decision under review.  No other course was open to it. 

9. Turning then briefly to the grounds of review. Paragraph 1 of the grounds of review is not entirely clear. Doing my best to understand it, it appears to take issue with Tribunal not considering documents signed by the nominator. I am unable to discern any jurisdictional error arising from this ground. As noted above, the principal issue the Applicant faced was whether the nomination of the nominator had been approved. It had not. The Applicant was therefore unable to meet the requirements of Clause 187.233(3).

10. Paragraphs 2 and 3 of the grounds of review appear to take issue with manner in which the nomination of the nominator was considered. Two things can be said about that. First, the decision presently under review before me is the decision in relation to the Applicant’s application for the visa, and not any application by the nominator in respect of the Minister’s refusal to approve the nomination of the nominator. Second, the Applicant does not have standing to seek to review any decision not to approve the nomination submitted by the nominator: see sections 478, 479 and 486C of the Migration Act 1958 (‘Act’).  Accordingly, no jurisdictional error is disclosed by paragraphs 2 and 3 of the grounds of review. 

11. Paragraph 4 of the grounds of review refers to an attached page.  There is no page attached to the Application.

12. I have considered two other matters in connection with the Application.

13. I have considered whether the Applicant has been denied procedural fairness. This is a case in which the Tribunal did not invite the Applicant to hearing. Section 360(1) of the Act ordinarily requires the Tribunal to invite an applicant to a hearing. The obligation in section 360(1) of the Act did not, however, apply in the present matter. That is because section 359C(1) and (2) of the Act applied to the Applicant. The Applicant was invited to comment on adverse information under section 359A of the Act, but did not do so. Her failure to do so meant that the Tribunal was entitled to proceed without interviewing the Applicant pursuant to section 360(2)(c) of the Act. Accordingly, the failure to interview the Applicant was not a denial of procedural fairness. Further and in any event, the operation of section 360(3) of the Act meant that the Applicant was not entitled to appear before the Tribunal.

14. In addition to the above, insofar as procedural fairness considerations arise, it is apparent from a review that the Applicant was on notice of the issue which ultimately led to the Tribunal affirming its decision.  She had been aware of the issue since being notified by the delegate in writing on 5 July 2017.  She was similarly notified of the issue by the Tribunal on 7 May 2018. It therefore could not have taken her by surprise. 

15. Finally, to the extent that I am wrong in relation to any aspect of the above, I would simply point out that even if I were to remit the matter to the Tribunal, it would be futile to do so. This is because Clause 187.233(3) requires the Applicant to have, at the time of the decision, an approved nomination. Satisfaction of this condition can only occur if there is an approved nomination which accompanies the visa application: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82].

16. For all of the reasons set out above, no jurisdictional error is apparent from the reasons of the Tribunal. As a result, the Applicant has not identified an arguable case for the relief claimed. Accordingly, I dismiss the Application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001, and award costs to the Minister in accordance with the scale.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date:         15 October 2020