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

The amended application is dismissed.
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

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.
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”).
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.
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.
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.
It was in those circumstances the Tribunal was satisfied that at the time that the applicant applied…

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.

Continue reading Gohil v Minister for Home Affairs

Details

AGLC: Gohil v Minister for Home Affairs [2018] FCCA 3027
Case: [2018] FCCA 3027
Decision Date: 25 October 2018

CaseChat Overview and Summary

The applicant, Mr Gohil, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which had dismissed his application for a Temporary Work (Skilled) (subclass 457) visa. The central dispute concerned whether the AAT had correctly determined that it lacked jurisdiction to hear Mr Gohil's application.

The court was required to consider several legal issues. These included whether the AAT had erred in concluding it had no jurisdiction to consider the visa application, whether the AAT had failed to comply with its statutory obligations, and whether the AAT had breached the requirements of procedural fairness in its dealings with Mr Gohil.

Justice Street found that the AAT had not made a jurisdictional error. The Tribunal had correctly assessed its own jurisdiction and, consequently, was entitled to dismiss the amended application. The court determined that the AAT had complied with its statutory obligations and had afforded Mr Gohil procedural fairness.

Orders