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

[2021] FCCA 2175

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gonawala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2175

File number(s):

SYG 2216 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination
(Permanent) (Class RN) (Subclass 187) Visas – where the first applicant did not have an approved nomination – where the second and third applicants were part of a family unit – no approved nomination – 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 359A, 476

Migration Regulations 1994 (Cth) cls 187.223, 187.311

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

12

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Ms A Robertson, Mills Oakley

ORDERS

SYG 2216 of 2019

BETWEEN:

URVI NISHANT GONAWALA

First Applicant

NISHANT HEMANT GONWALA

Second Applicant

VEERAJ GONAWALA

Third 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:	16 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 first and second applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction and Background

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 July 2019, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination

   
   

   (Permanent) (Class RN) (Subclass 187) Visas (“the Visas”). 

2. The first applicant is a citizen of India, and the second and third applicants are, respectively, the first applicant’s husband and son. A litigation guardianship order has been made in respect of the third applicant.

3. On 21 November 2016, the delegate found that the applicants failed to meet the criteria for the grant of the Visas, because the first applicant did not have an approved nomination.

4. On 1 December 2019, the applicants applied to the Tribunal for review. On 8 July 2019, the Tribunal wrote to the applicants, inviting them to comment on the fact that they did not have an approved nomination, pursuant to s 359A of the Act. There was a response provided, and the Tribunal was invited to make a decision based on the information provided. 

5. The Tribunal proceeded to determine the review application, and found that the first applicant did not meet the criteria under cl 187.223 of the Migration Regulations 1994 (Cth) (“the Regulations”) as she did not have an approved nomination. Consequently, the Tribunal found that the second and third applicants were unable to meet cl 187.311 of the Regulations. On 31 July 2019, the Tribunal affirmed the decision of the delegate under review.

   Before the Court

6. These proceedings were commenced on 21 August 2019 and were fixed for a show cause hearing today, 16 August 2021. 

7. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. The first applicant contended that she did not understand why her application had been refused when she had done everything she could. 

8. The Tribunal explained to the first applicant that she needed to have an approved nomination from her employer. The delegate had also identified the same issue. The first applicant did not have such a nomination. In those circumstances, she could not succeed before the Tribunal. Nothing that was said by the first applicant identified an arguable case for the relief claimed. 

   The Ground

9. The Ground in the application is as follows:

   1.The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the second criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

   In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Retail Manager (General).

   The delegate refused to grant the visas because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.

10. The Ground does not identify any arguable case or relevant error by the Tribunal in its finding that the first applicant did not have an approved nomination, which was an essential criteria for the first applicant to succeed. No arguable case of relevant error is disclosed by Ground 1.

11. 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).

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

I certify that the preceding twelve (12) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 8 November 2021