Jaspreet v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 439
•22 April 2022
FEDERAL COURT OF AUSTRALIA
Jaspreet v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 439
Appeal from: Jaspreet & Anor v Minister for Immigration & Anor [2019] FCCA 3562 File number: NSD 2181 of 2019 Judgment of: YATES J Date of judgment: 22 April 2022 Catchwords: MIGRATION – appeal from the Federal Circuit Court of Australia – where the Federal Circuit Court of Australia dismissed the appellant’s application for judicial review of decision of the Administrative Appeals Tribunal – where requirements of cl 186.223 in Sch 2 to the Migration Regulations 1994 (Cth) not satisfied – where the appellant has departed Australia and has no right of return – appeal dismissed Legislation: Migration Regulations 1994 (Cth) sch 2, cl 186.223
Federal Court Rules 2011 (Cth) r 40.02(b)
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 14 Date of hearing: 22 April 2022 Counsel for the Appellant: The Appellant did not appear Solicitor for the Respondent: Ms K Pieri of MinterEllison ORDERS
NSD 2181 of 2019 BETWEEN: JASPREET JASPREET
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
22 APRIL 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs on a lump sum basis, fixed in the amount of $4,713.08.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 9 December 2019, which dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal is not, but should have been, named as a respondent to the appeal. The only named respondent is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). Although not named as a party, the Tribunal was served with the notice of appeal and has filed a submitting appearance.
The Tribunal’s decision affirmed a decision of the Minister’s delegate, made on 5 December 2017, which refused the appellant’s application for an Employer Nomination Scheme (subclass 186) visa.
The reason for that refusal can be stated briefly. In order to obtain the visa, the appellant had to satisfy the requirements of cl 186.223 in Sch 2 to the Migration Regulations 1994 (Cth). One of those requirements was that the application be supported by an employer nomination that had been approved by the responsible Minister: cl 186.223(2). The appellant lodged an employer nomination by K P Sidhu Investments Pty Ltd (the company). However, on 22 August 2017, this nomination was refused. (I note that both the appellant and the company applied, unsuccessfully, to the Tribunal to review that decision).
The appellant sought to overcome this obstacle by relying on a new nomination by the company. However, cl 186.223(1)(c) does not permit this. Therefore, as events transpired, the appellant could not satisfy the requirement of cl 186.223(2) in respect of the visa application he had made. Inevitably, this meant that his application would be refused. The delegate made a decision to that effect.
The appellant decided to seek a review of the delegate’s decision in the Tribunal. However, that application was met with the predictable outcome that the delegate’s decision was affirmed.
The appellant then sought judicial review of the Tribunal’s decision in the Federal Circuit Court. That application was met with the equally predictable outcome that the proceeding was dismissed, with costs. As the primary judge put the matter:
18.Unfortunately for Mr Jaspreet, the legal issues in the case are quite clear. He could not obtain the visa he sought without an approved employer nomination. Neither could he substitute a fresh nomination in the visa application he made. It follows that the Tribunal made the only decision available to it.
19.Even if, on judicial review, some error was identified, it would, in my view, be futile to remit the matter to the Tribunal, as the same decision would have to be made. ...
The appellant now appeals to this Court. When the appeal was called on for hearing, the appellant did not appear. This was, perhaps, predictable given the following facts.
On 22 December 2021, this appeal was allocated to my docket. On that day, I listed the appeal for hearing today, 22 April 2022. On 10 January 2022, the NSW Appeals Unit of the Court received an email from the appellant requesting that the hearing of the appeal be postponed because he was “out of Australia due to border crossings from last 2 years”.
This communication was forwarded by the NSW Appeals Unit to the Minister’s solicitors, asking whether the Minister was able to shed any light on the appellant’s statement that he was outside Australia. The Minister’s solicitors responded by stating that they had been instructed that the appellant had, in fact, “been offshore since 29 February 2020”, and had no right of return. The Minister’s solicitors also stated the Minister did not consent to the hearing being postponed.
In light of this information, an email was sent, on my instruction, by the NSW Appeals Unit to the appellant, informing him that I was not prepared to adjourn the hearing and that, if he wished to participate in the hearing, he could do so by audio-visual link. The appellant has not availed himself of that facility. The appellant was also reminded that orders had been made on 23 January 2020 by a Registrar of the Court, which included an order that he file a written outline of submissions by no later than ten (10) business days before the appointed hearing date. The appellant has not complied with that order.
The notice of appeal contains the following grounds:
1.The learned judge erred in law and/or in fact in failing to find that the decision of the Department of Home Affairs was affected by jurisdictional error and or the Department of Home Affairs had misapplied the Migration Regulations and/or the Migration act for the following with respect to the First Applicants (“the Applicant”) intentions to stay in Australia for the purpose of seeking a 457 visa.
a)The Department of Home Affairs the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the applicant that indicated that the applicant's claims were of a genuine applicant
b)The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant matters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law;
c)The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to properly and/or adequately investigate and assess the claims put forth by the applicant with a genuine claims of achieving a 457 visa
2.The Department of Home Affairs and/or the Federal Circuit court erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration and weight to evidence presented by the applicant with respect to
i)Approved Nomination Application for a 457 visa.
ii)The evidence showing that the applicant had an approved 457 visa nomination at the time of application to the Department of Home Affairs.
iii)The claims put forward by the applicant to support his application.
These grounds were not raised in the application for judicial review. The appellant requires leave to rely on them now. I am not prepared to grant that leave. Leaving aside their lack of merit (which I need not address but which has been fully addressed in the written submissions filed by the Minister), the appellant has not grappled with the fact that he has not satisfied, and cannot satisfy, the legal requirements for the visa, based on the application he made. This undeniable fact has been made clear to the appellant on numerous occasions. His appeal to this Court cannot succeed. Moreover, the appeal is now an exercise in futility given that the appellant has departed Australia and has no right of return.
The appeal will be dismissed, with costs.
The Minister seeks costs on a lump sum basis pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). The amount sought is $4,713.08. The Minister’s application for costs is supported by the affidavit of Kerrie Pieri made 21 April 2022. Ms Pieri is employed as a solicitor in the firm of solicitors acting for the Minister in this appeal. Ms Pieri has had carriage of the appeal on behalf of the Minister, under the supervision of a partner in the firm, Mr Pinder. Based on the matters deposed to by Ms Pieri, I am satisfied that costs should be awarded on a lump sum basis for the amount that is sought.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 22 April 2022
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