Datta v Minister for Home Affairs - [2019] FCCA 2604

FEDERAL CIRCUIT COURT OF AUSTRALIA

DATTA v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 2604

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (“Tribunal”) – whether there was an approved employment nomination as required by cl.186.223 of sch.2 of the Migration Regulations 1994 (Cth) – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error revealed – otherwise futile to grant the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.338, 347, 359, 359A, 359AA, 359C, 360, 363A, 424, 424A, 424AA, 441A, 441C, 474, 476
Migration Regulations 1994 (Cth), regs.4.02, 4.10, sch.1, sch.2, subclass 186, cl.186.223, cl.187.233
Federal Circuit Court Rules 2001 (Cth), pt.44

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40; (2010) 183 FCR 413
Singh v Minister Immigration and Border Protection [2017] FCAFC 105; (2017) 253 FCR 267; (2017) 156 ALD 284

Applicant:

RAJEEV DATTA

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1164 of 2019

Judgment of:

Judge Nicholls

Hearing date:

12 September 2019

Date of Last Submission:

12 September 2019

Delivered at:

Sydney

Delivered on:

16 September 2019

REPRESENTATION

Applicant:

In person

Representative for the Respondents:

Mr M. Gao

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application made on 13 May 2019 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1164 of 2019

RAJEEV DATTA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 13 May 2019 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 April 2019 to affirm the decision of the Minister’s delegate not to grant an Employment Nomination (Permanent) visa (“the visa”) to Mr Datta (“the applicant”).
The evidence before the Court is:
(1)A bundle of relevant documents filed and tendered by the Minister (Court Book – “CB” – “RE1”)
(2)A bundle of documents tendered by Mr Datta (“AE1”)
(3)The affidavit of Mengqi Ren, solicitor, sworn on 10 September 2019, with annexures.

The Delegate

Mr Datta is a citizen of India. He first arrived in Australia on 10 March 2009. He applied for the visa on 8 November 2016. He was assisted by a registered migration agent (CB 4).
At that time there was only one subclass of employment visa, that is subclass 186, under the relevant Employment Nomination Scheme.
The criteria for the grant of the subclass 186 visa are set out at subclass 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Relevantly Mr Datta was required to satisfy the “primary criteria” set out in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2604
Decision Date: 16 September 2019

CaseChat Overview and Summary

The applicant, Mr. Datta, sought judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal had affirmed the Minister for Home Affairs' refusal to grant Mr. Datta a visa under the Migration Regulations 1994 (Cth). The core of the dispute concerned whether Mr. Datta had met the requirements for an approved employment nomination as stipulated by clause 186.223 of Schedule 2 to the Migration Regulations.

The court was required to determine two primary legal issues. Firstly, whether the Administrative Appeals Tribunal erred in its finding that there was no approved employment nomination for the applicant. Secondly, the court considered whether the Tribunal had failed to afford the applicant procedural fairness in its decision-making process.

In reaching its decision, the court found no jurisdictional error on the part of the Tribunal. The reasoning focused on the interpretation of the relevant migration regulations concerning employment nominations. The court concluded that the Tribunal's assessment of the nomination's validity was consistent with the legislative requirements. Furthermore, the court determined that the applicant had not been denied procedural fairness. Given these findings, the court considered that any relief granted would be futile, as the underlying requirements for the visa had not been met. Consequently, the application for judicial review was dismissed.

Orders