Gohil v Minister for Home Affairs

[2018] FCCA 3027

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOHIL v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3027

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Work (Skilled) (subclass 457) visa – whether the Tribunal was correct to conclude that it had no jurisdiction – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – no jurisdictional error made out – amended application dismissed.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.140GB, 338, 476

Migration Regulations 1994 (Cth), cl. 457.233

Applicant: SHNEHALBEN DINESHBHAI GOHIL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1364 of 2018

Judgment of: Judge Street

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Sydney

Delivered on: 25 October 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 25 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1364 of 2018

SHNEHALBEN DINESHBHAI GOHIL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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 19 April 2018 holding that the Tribunal did not have jurisdiction in respect of a review application of a delegate’s decision to refuse to grant the applicant a Temporary Work (Skilled) (subclass 457) visa made on 8 March 2018.

2. The delegate refused to grant the visa on the basis that the applicant did not meet the that a nomination of an occupation in relation to her has been approved under s 140GB of the Act consistent with cl 457.223(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

3. The applicant lodged an application for review on 22 March 2018. The Tribunal noted that a decision to refuse to grant the subclass 457 visa is a reviewable decision under s 338(2) of the Act and regulation 4.02(4) of the Regulations if it meets certain criteria.

4. The Tribunal identified that the decision is reviewable under s 338(2)(d) of the Act if a relevant nomination is approved when the applicant applied for review or the application for review of a decision to refuse to approve a relevant nomination is pending when the applicant applied for review.

5. The Tribunal noted that it wrote to the applicant on 3 April 2017 advising that it had no record of a relevant nomination or application for review of a decision to refuse to approve a nomination. The Tribunal noted the applicant did not respond to that letter.

6. It was in those circumstances the Tribunal was satisfied that at the time that the applicant applied for review, she was not the subject of an approved nomination and that there was no pending application for review of a decision to refuse to approve a nomination. Accordingly, the Tribunal found the applicant did not meet the criteria in s 338(2)(d) of the Act and that the Tribunal did not have jurisdiction to review the matter.

7. These proceedings were commenced on 14 May 2018. On 7 June 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

8. The applicant did file an amended application on 2 August 2018 that set out the following grounds:

   1. The Tribunal made jurisdictional error and did not give chance to the applicant to prove that she had applied valid 457 visa application.

   2. Applicant did not have approved nomination but they did not give her time to satisfy criteria.

   3. Applicant occupation is in nomination list and the company needs to apply for nomination but they did apply and they misguide to the applicant.

   4. The company the trustee for G.E Unit Trust did not tell her that they are not going to apply nomination for her and they lie to her.

   5. Applicant also satisfied all criteria for this visa and she work for them until this visa refused.

   6. Applicant satisfied clause 457.223(1) and meet all requirements of subclause (2) and (4)

   7. The company the trustee for G.E Trust did not follow the rule and doing wrong things with employee.

   8. Applicant is trust full witness and working hard in Australia. She had completed her course and working for this company.

   9. If the company do not wants to sponsor her they should inform her but they wait for decision and play with her future.

   10. Section 140GB needs to satisfied but the company did not apply for nomination.

9. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed she understood the explanation as given by the Court. The applicant put no submissions from the bar table.

Ground 1

1. In relation to ground 1 of the amended application, it is apparent that the Tribunal wrote to the applicant giving her an opportunity to respond to the Tribunal’s concern that it had no jurisdiction because of the provisions of s 338(2)(d) of the Act. The applicant failed to respond.

2. There is no substance in the contention that the applicant was not given a chance to establish the criteria under s 338(2)(d) of the Act. The applicant’s assertion that she made a valid application does not establish any evidence upon which the requirements of s 338(2)(d) of the Act could be found to have been satisfied. No jurisdictional error was made by the Tribunal as mentioned in ground 1.

Ground 2

1. In relation to ground 2, the assertion by the applicant that she had an approved nomination is again a bare assertion made from the application and is not supported by any evidence. There is no evidence of the applicant satisfying the criteria under s 338(2)(d) of the Act and none was before the Tribunal. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this appears to be an assertion by the applicant that she applied for a nomination that there was some misleading of the applicant. No such contention or proposition was advanced by the applicant to the Tribunal. On the evidence before the Tribunal, the relevant nomination under section 338(2)(d) of the Act was not before the Tribunal. The Tribunal was correct in concluding it had no jurisdiction. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. In relation to ground 4, the applicant seeks to complain about the person who was going to make an application for approval of a nomination and alleges that they lied to the applicant. No such proposition was advanced to the Tribunal. No such proposition identifies any basis upon which it could be said the Tribunal’s decision was affected by a relevant legal error in concluding it had no jurisdiction. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, the applicant’s assertion that she satisfied the criteria for the visa is not supported by any evidence and does not make out any jurisdictional error. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, the applicant again alleges compliance with cl 457.223(1) of the Regulations and an assertion that she met the requirements of subclause (2) and subclause (4). No such submission was advanced to the Tribunal and there is no evidence before the Tribunal that the applicant met the criteria under s 328(2)(d) of the Act. The Tribunal was in these circumstances correct to conclude that it had no jurisdiction. No jurisdictional error as alleged in ground 6 is made out.

Ground 7

1. In relation to ground 7, the applicant complained that the company did the wrong thing by her. The assertion does not identify any basis upon which it could be said that the Tribunal made any jurisdictional error. No jurisdictional error as alleged in ground 7 is made out.

Ground 8

1. In relation to ground 8, the applicant seeks to refer to her working history which does not in any way identify any basis upon which there could be said to be a jurisdictional error by the Tribunal in concluding that it did not have jurisdiction for the applicant’s failure to meet the criteria under s 338(2)(d) of the Act. No jurisdictional error is made out by ground 8.

Ground 9

1. In relation to ground 9, the applicant complains again about the sponsor, an issue not raised before the Tribunal and an issue which does not identify any basis upon which it could be said the Tribunal made any jurisdictional error. No jurisdictional error as alleged in ground 9 is made out.

Ground 10

1. Ground 10 appears to acknowledge the absence of any relevant nomination, and insofar as it asserts that the company failed to apply for the nomination, it does not identify any basis upon which it could be said that the Tribunal’s decision was affected by any relevant legal error. No jurisdictional error is made out by ground 10.

Conclusion

1. This application on its face was doomed to failure and had no prospect of success. It is not apparent to the Court why the proceedings were not the subject of a show cause application under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. On the face of the material before the Court the applicant was given an opportunity to address the Tribunal’s concern as to a want of jurisdiction. On the face of the material before the Court the Tribunal complied with its statutory obligations in holding that it had no jurisdiction in the circumstance of the present case. No jurisdictional error has been made out.

3. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 30 November 2018