Enuganti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2099

FEDERAL CIRCUIT COURT OF AUSTRALIA

Enuganti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2099

File number(s):

SYG 1532 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Subclass 187) (Direct Entry Stream) Visa – where the applicant did not have an approved nomination – whether the Tribunal had an evident and intelligible justification for the adverse decision – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 476

Migration Regulations 1994 (Cth) cls 187.223(3), 187.233(5)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

14

Date of hearing:

17 August 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the first respondent:

Ms K Gawidziel, Australian Government Solicitor

ORDERS

SYG 1532 of 2019

BETWEEN:

ANUDEEP GOUD ENUGANTI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 AUGUST 2021

THE COURT ORDERS THAT:

1.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2.The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 June 2019, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Regional Employer Nomination (Subclass 187) (Direct Entry Stream) Visa (“the Visa”).

   BACKGROUND

2. The applicant is a citizen of India and applied for the Visa on 27 August 2018. 

3. On 6 March 2019, the delegate refused the application for the grant of the Visa because the applicant did not meet the requirements of cl 187.233(5) of the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 11 March 2019, the applicant applied to the Tribunal for review. On 18 March 2019, the Tribunal requested that the applicant provide evidence that he had an approved nomination. On 20 March, the applicant responded via email, indicating that he did not have an approved nomination. 

5. On 9 May 2019, the applicant was invited to attend a hearing before the Tribunal on 3 June 2019. On 31 May 2019, the applicant provided a response, confirming that he would attend the hearing on 3 June 2019. The applicant was refused an adjournment. On 3 June 2019, the applicant attended the hearing before the Tribunal without his representative.

6. On 12 June 2019, the Tribunal found that the applicant did not meet the criteria for the grant of the Visa. The Tribunal found that the applicant did not have an approved nomination and, accordingly, did not satisfy the criteria under cl 187.223(3) of the Regulations. Consequently, the Tribunal affirmed the decision of the delegate under review.

   BEFORE THE COURT

7. These proceedings were commenced on 21 June 2019, and fixed for a show cause hearing today, 17 August 2021, under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

8. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing. The applicant sought to explain why it was that he did not have an approved nomination. Unfortunately, the reasons why the applicant did not have an approved nomination do not identify any arguable case of relevant error by the Tribunal.

9. The applicant’s submissions also identified that the applicant may otherwise have to return to India. The Court has no power to revisit the merits and cannot determine the matter on compassionate or discretionary grounds. Nothing said by the applicant identified an arguable case of relevant error.

   THE GROUNDS

10. The three Grounds in the application are as follows:

    Ground 1

    1.NATURAL JUSTICE

    Ground 2

    2.UNREASONABLENESS

    Ground 3

    3.DID NOT CONSIDER THE RELEVANT INFORMATION THAT WAS SUPPOSED TO BE CONSIDERED.

    CONSIDERATION

11. Without particulars, none of the three Grounds are capable of identifying an arguable case of relevant error. On the face of the Tribunal’s reasons, the Tribunal complied with its statutory obligations in the conduct of a review. Given that the applicant did not have an approved nomination, there was an evident and intelligible justification for the adverse decision and no relevant information has been identified that the Tribunal failed to consider.

12. The applicant’s personal circumstances as to why the applicant did not have an approved nomination were not matters capable of establishing any error by the Tribunal, as it was a mandatory requirement that the applicant have an approved nomination. There is no arguable case of a denial of natural justice. The decision had an evident and intelligible justification being the absence of an approved nomination. The Tribunal did not need to consider other information if the applicant didn’t have an approved nomination which was an essential criterion. No arguable case of jurisdictional error is disclosed by Grounds 1 to 3.

13. The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

14. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding fourteen (14) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 6 October 2021