Jarial v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 1937

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jarial v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 1937

File number(s):

PEG 27 of 2020

Judgment of:

JUDGE LUCEV

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Judicial review – Administrative Appeals Tribunal – Employer Nomination Visa – where alleged error in nomination application decision – where judicial review sought in relation to nomination application decision – where nomination application review is dismissed  

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 13.03B

Migration Act 1958 (Cth) ss 476, 479, 486C

Cases cited:

Jarial Couriers v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313

Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730

Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Mora v Minister for Immigration and Border Protection [2018] FCA 1819

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510

Number of paragraphs:

8

Date of last submission/s:

16 August 2021

Date of hearing:

16 August 2021

Place:

Perth

Applicants:

In-person

Counsel for the First Respondent:

Ms G. Ellis

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 27 of 2020

BETWEEN:

MINU JARIAL

First Applicant

ANIL KUMAR

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The originating application filed 24 January 2020 be dismissed.

2.

The Applicant to pay the First Respondent’s costs in the sum of $5,000 by

16 February 2022.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised from transcript)

JUDGE LUCEV

1. Before the Court is an application by Ms Minu Jarial (“Ms Jarial”), for judicial review (“Judicial Review Application”), filed on 24 January 2020. Ms Jarial’s Judicial Review Application is brought under s 476 of the Migration Act 1958 (Cth) in relation to a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), dated 9 January 2020. The Tribunal Decision affirmed a decision of the delegate of the first respondent then the Minister for Immigration, Citizenship and Multicultural Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant Ms Jarial an Employer Nomination (Temporary) (Class EN) (Subclass 186) visa (“Employer Nomination Visa”).

2. The dispositive reason in the Tribunal Decision is Ms Jarial does not have an approved nomination for the Employer Nomination Visa.  Relevantly, the Tribunal, differently constituted, upon review of a decision of a different delegate of the Minister, affirmed a decision not to approve the employer nomination application.  The nominating employer, Jarial Couriers Pty Ltd (“Jarial Couriers”) sought judicial review of that decision in this Court on 12 December 2019. 

3. The premise of Ms Jarial’s application to the Court is that if Jarial Couriers’ Tribunal Decision (the subject of proceedings in PEG484/2019) contains error and is remitted, Ms Jarial’s Employer Nomination Visa application must also be remitted. Whilst Ms Jarial has no standing to challenge the Tribunal Decision concerning the nomination application, and the Court refers to ss 486C(2)(a) and 479(a) of the Migration Act, it is not in dispute that the success or otherwise of this Judicial Review Application is contingent upon the Court’s judgment in PEG484/2019:  Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [55]-[57] per Collier J; Kaur v Minister for Immigration and Border Protection [2016] FCCA 1730 at [48] and [72] per Judge Smith (consistent with Minister for Home Affairs v Mohammed [2019] FCAFC 49; (2019) 269 FCR 70 at [93] per Middleton, Bromberg and Kerr JJ). In Jarial Couriers v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1313 at [62] per Judge Lucev, the Court concluded as follows:

   (a)it ought not grant leave under r 9.04 of the FCC Rules for a non-lawyer to appear for Jarial Couriers in these proceedings;

   (b) the Minister’s application made orally at hearing for summary dismissal of the Judicial Review Application is to be dismissed;

   (c) Jarial Couriers will be required, by order of the Court, to file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021; and

   (d) if Jarial Couriers fails to comply with the Court’s order that it file an address for service for a lawyer acting for it in compliance with rr 6.01 of the FCC Rules by 11 August 2021 the Judicial Review Application is to be dismissed pursuant to r 13.03B(1)(c) of the FCC Rules.

4. Orders were made and: 

   (a)pursuant to Order 3, Jarial Couriers was to file and serve an address for service for a lawyer by 11 August 2021;  and

   (b)pursuant to Order 4, it was provided that, if Jarial Couriers failed to comply with Order 3 of the orders then made, the originating application was to be dismissed pursuant to r 13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

5. Jarial Couriers failed to comply with Order 3, and the originating application, therefore, stood dismissed as of the date of that failure, namely, 11 August 2021. 

6. The application for judicial review made in PEG484/2019 having been dismissed, it follows that the Judicial Review Application in these proceedings must be dismissed.  Ms Jarial, appearing today, made some submissions in relation to what she sought might happen regarding indulgences to be granted to her, with respect to the grant of a visa. However, as the Court explained to her, the Court does not determine whether or not Ms Jarial is granted or is not granted a visa, or the conditions upon any grant of a visa.  The Court is simply in a position of determining whether the Tribunal Decision was affected by jurisdictional error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.

7. Ms Jarial also submitted that the cause of the failure to grant the Employer Nomination Visa, in this case, was as a consequence of a failure by her then migration agent to deal with emails and respond to those emails.  There is High Court authority for the proposition that the mere negligence of a migration agent is not sufficient to constitute jurisdictional error, and in those circumstances, regrettable as it might be that the migration agent so acted, if the migration agent did so act, it is not a matter which constitutes jurisdictional error giving this Court the capacity to set aside the Tribunal Decision: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510, CLR at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [30] and [33] per Tamberlin, Finn, Dowsett JJ.

8. There will, therefore, be an order that the Judicial Review Application, filed on 24 January 2020, be dismissed.  The Minister also seeks costs and, with respect to costs, it is inevitable in the circumstances of this case that Ms Jarial must pay the Minister’s costs.  The Minister seeks those costs in the amount of $5,000, which is less than the scheduled amount that the Minister is entitled to seek.  Ms Jarial seeks some dispensation by way of instalments with respect to the payment of that sum.  The Court will order that there be six months to pay and, if Ms Jarial pays that by way of instalments, then so be it.  So there will be the order that the Court has indicated with respect to the dismissal of the Judicial Review Application, and there will be a further order that Ms Jarial pay the Minister’s costs, in the sum of $5,000, by 16 February 2022. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Associate:

Dated:       20 August 2021