Goswami v Minister for Immigration

[2020] FCCA 138

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOSWAMI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 138

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of employer nomination visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.359A, 359B, 379A
Migration Regulations 1994 (Cth)

First Applicant: RAJ KUMAR GOSWAMI

Second Applicant: KAMALA BHATTARAI GOSWAMI

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1715 of 2019

Judgment of: Judge Driver

Hearing date: 28 January 2020

Delivered at: Sydney

Delivered on: 28 January 2020

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Mr J Pipolo of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1715 of 2019

RAJ KUMAR GOSWAMI

First Applicant

KAMALA BHATTARAI GOSWAMI

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 June 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants employer nomination permanent visas.  There are two applicants, who are a husband and wife.  The visa claims were made by the first applicant, Mr Goswami, and his wife, Mrs Goswami, applied as a member of his family group.

2. Background facts relating to the matter are set out in the Minister’s outline of submissions filed on 9 January 2020.   

3. Mr Goswami is a male citizen of Nepal who applied for an Employer Nomination (Subclass 186) visa in the Temporary Residence Transition stream on 12 December 2015.[1]  Mrs Goswami, who is also a citizen of Nepal, was included in the visa application as a member of the applicant’s family unit.[2]

   [1] CB 1-13

   [2] CB 3

4. The applicants nominated Sunrise International Consulting Pty Ltd (representative) as their registered migration agent and authorised them to received electronic communication on their behalf.[3]

   [3] CB 6

5. The application was made on the basis of the nomination by Tiles Links Pty Ltd (the sponsor) in the position of contract administrator.[4]  

   [4] CB 1, 14

6. On 4 May 2017, the Minister’s Department wrote to the applicants’ representative inviting them to comment on information that the nomination submitted by the sponsor had been refused.[5]  No response was provided by the applicants.

   [5] CB 123-125

7. On 26 May 2017, Pacific International Consulting Pty Ltd (the applicants’ new representative) informed the Minister’s Department it had been appointed as the migration agent representing the applicants’ and attached a Form 956. The new representative noted the sponsor had appealed the decision of the delegate to refuse its nomination of the applicant and asked the Minister’s Department to “hold on the decision until the AAT makes a decision on nomination of the employer”.[6]  

   [6] CB 126-130

8. On 5 June 2017, the delegate refused to grant the subclass 186 visa because the applicant was not the subject of an approved nomination and therefore did not satisfy clause 186.223(2) of the Migration Regulations 1994 (Cth) (Regulations).[7]  Relevantly, clause 186.233(3) of the Regulations required that the Minister had approved the nomination. The delegate found that the nomination lodged by the sponsor was refused by a delegate on 4 May 2017 and accordingly the applicant did not satisfy the criteria for the grant of the visa.  

   [7] CB 131-138

The Tribunal proceedings

1. On 22 June 2017, the applicants applied for review of the delegate’s decision[8] and provided a copy of the delegate’s decision and notification.[9]

   [8] CB 139-140

   [9] CB 140

2. By letter dated 10 April 2019, Mr Goswami was invited to attend a hearing before the Tribunal scheduled for 2 May 2019.[10]

   [10] CB 149-156

3. On 30 April 2019, Mr Goswami responded to the hearing invitation and declined the opportunity to appear.[11]

   [11] CB 157-158

4. By letter dated 24 May 2019 and sent by email to Mr Goswami’s authorised recipient, the Tribunal invited Mr Goswami to comment on information pursuant to s.359A(1) of the Migration Act 1958 (Cth) (Migration Act) that Mr Goswami was not the subject of an approved nomination.[12]

   [12] CB 163-165

5. The invitation dated 24 May 2019 complied with the requirements of the Migration Act because:

   a)it provided clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review, namely that on 8 May 2018 the Tribunal affirmed the delegate’s decision not to approve the nomination of an occupation made by the sponsor in relation to Mr Goswami;[13]

   b)it explained that this information was relevant to the review because one of the requirements for the grant of a subclass 186 visa was that there was an approved nomination. If the Tribunal relied on this information, it may find that the nomination in relation to Mr Goswami had not been approved and the decision under review would be affirmed;[14]

   c)it invited Mr Goswami to comment on or respond to the information in writing;[15]

   d)it was sent to Mr Goswami’s email address provided in the application for review;[16] and

   e)it provided Mr Goswami with the prescribed period to comment on or respond to the information by 25 May 2018, being 14 days after the invitation was taken to be received.[17]

   [13] section 359A(1)(a)

   [14] section 359A(1)(b)

   [15] sections 359A(1)(c) and 359B(1)

   [16] sections 359A(2)(a) and 379A(5)(b)

   [17] section 359B(2) and regulation 4.17(4)

6. Mr Goswami, by his new representative, responded to the s.359A invitation on 7 June 2019 indicating that “as the nomination has been refused, Raj Kumar has nothing to say and asked the AAT to take its decision”.[18]

   [18] CB 166-167

The Tribunal’s decision

1. On 12 June 2019, the Tribunal affirmed the decision under review.[19]

   [19] CB 171-174

2. The Tribunal, at [10],[20] identified that the issue on the review was whether the relevant employer nomination had been approved. Clause 186.233 of the Regulations required that the position to which the application related be the subject of an application for approval of a nominated position. As Mr Goswami was not the subject of an approved nomination, the Tribunal found that he did not meed clause 186.223(2) of the Regulations and therefor did not satisfy the requirements of the grant of a subclass 186 visa.[21]

   [20] CB 172

   [21] CB 173 [16]

3. The Tribunal noted that it had invited Mr Goswami to comment on or respond to information relating to his visa pursuant to s.359A of the Migration Act. Mr Goswami’s representative responded to the Tribunal’s invitation by indicating that Mr Goswami “had nothing to say” and subsequently invited the Tribunal to make a decision on the papers.[22]

   [22] CB 173 [14]-[15]

4. The Tribunal found that the evidence before it indicated Mr Goswami’s nomination was not approved and he therefore did not satisfy clause 186.223(2) of the Regulations.

5. As Mr Goswami did not meet the criteria for the grant of a visa, the Tribunal found that Mrs Goswami did not meet the secondary criteria for the grant of a visa.[23]

   [23] CB 173

6. These proceedings began with a show cause application filed on 8 July 2019.  The applicants continue to rely upon that application.  There are two grounds in it:

   1. The tribunal unreasonably refused the applicant’s request to hold their application until the court has determined her employer nominator’s application for a review of the tribunal’s decision to affirm the department’s refusal decision on nomination.

   Particulars

   (a) The applicant is an applicant for a Class EN SC186 visa.

   (b) Cl.186.223 is one of the visa grant criteria.

   (c) The criteria requires that the Minister has approved nomination.

   (d) The employer nominator applied for approval of the nomination of a position but was rejected by the department on 25 October 2016.

   (e) The employer nominator applied for a review of the refused nomination, but on 11 May 2018 the tribunal affirmed the department’s decision to refuse the nomination.

   (f) However, on 5 July 2018 the employer nominator appealed the decision to the Federal Circuit Court.

   (g) The judicial review is now pending.

   2. The tribunal made a jurisdictional error by basing its decision on no evidence.

   Particulars

   (a) On 5 July 2018 the employer nominator appealed the decision to the Federal Circuit Court, and the review is now pending.

   (b) Once the court has made a decision in favour of the employer nominator, the visa applicant will have an approved nomination.

7. The application is supported by a short affidavit filed with it, which I received. 

8. I also have before me as evidence the court book filed on 10 September 2019 and the affidavit of Lachlan Merrigan made on 9 January 2020.  Mr Merrigan is an employed solicitor with the Minister’s solicitors and deposes as to the circumstances of the sponsor relevant to Mr Goswami’s visa application. 

9. Mr Goswami’s essential difficulty is that at the time his matter came before the Tribunal for hearing, he did not have an approved sponsor.  This was pointed out to him, and he was invited to comment.  The simple position is that in the absence of an approved sponsor, the Tribunal’s hands were tied and it made the only decision available to it. 

10. Regrettably for Mr Goswami, the grounds of review raised have no substance.  I agree with the Minister’s submissions concerning those grounds. 

Ground 1

1. Ground 1 alleges the Tribunal unreasonably refused Mr Goswami’s request to “hold” his application until the Court determined the sponsor’s application for judicial review of the Tribunal’s decision affirming a delegate’s decision to refuse the sponsor’s nomination application. The accompanying particulars recount the procedural history in relation to the sponsor’s dealings with the Minister’s Department and the Tribunal and state that the sponsor has sought judicial review.

2. This ground cannot succeed because neither Mr Goswami nor his representative ever requested the Tribunal adjourn the review for any reason. To the contrary, after the Tribunal invited Mr Goswami to comment on information on 24 May 2019 in accordance with s.359A of the Migration Act, Mr Goswami indicated he had nothing further to say, and asked the Tribunal to proceed to make a decision on the papers.[24] This ground does not disclose any error on the part of the Tribunal and it would not succeed.

   [24] CB 157-158

Ground 2

1. Ground 2 alleges the Tribunal made a jurisdictional error “by basing its decision on no evidence”. The accompanying particulars state that the sponsor has sought judicial review and once the Court makes a decision in favour of the “employer nominator”, Mr Goswami will have an approved nomination.

2. Mr Goswami’s assertion that the Tribunal based its decision on “no evidence” cannot succeed in circumstances where the Tribunal had before it information that indicated Mr Goswami was not the subject of an approved nomination. Mr Goswami conceded that the nomination has been refused.[25]  

   [25] CB 166

3. The Tribunal’s decision was a straightforward application of clause 186.223 of the Regulations and was without error.  Mr Goswami was not the subject of an approved nomination at the time of the Tribunal’s decision and accordingly, the Tribunal’s conclusion was plainly open.

4. Further, and as is pointed out by the Minister in his submissions at [28], even if some error was established in the procedure adopted by the Tribunal, and none is apparent, the Court would refuse relief in the exercise of discretion on the basis of futility.  If this matter were returned to the Tribunal, Mr Goswami would be in the same position as he was when the Tribunal dealt with the matter.

5. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

6. On account of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale.  Mr Goswami did not wish to be heard on the question of costs.

7. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 February 2020