Jethara v Minister for Immigration
[2020] FCCA 529
•11 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JETHARA v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 529 |
| Catchwords: MIGRATION –Review of Administrative Appeals Tribunal decision – refusal of an employment visa – interlocutory dismissal of show cause application – no grounds of review – incompetent application. |
| Legislation: Migration Act 1958 (Cth), s.360 Migration Regulations 1994 (Cth) |
| Cases cited: Basnet v Minister for Home Affairs [2019] FCCA 3046 |
| Applicant: | AADIL MOHAMMED YUSUF JETHARA |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 864 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2020 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr N. McArdle of Sparke Helmore Lawyers |
INTERLOCUTORY ORDERS
The title of the First Respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The respondent has leave to amend the Outline of Submissions filed 4 March 2020 in respect of footnote 5 at paragraph 19 to read “Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046 [25]-[30]”.
The application is dismissed as incompetent.
The applicant is 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 3 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 864 of 2019
| AADIL MOHAMMED YUSUF JETHARA |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Background
The applicant, Mr Jethara, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 1 March 2019. The Tribunal affirmed decisions of a delegate of the Minister (delegate) not to grant Mr Jethara’s employer nomination permanent visas. There were two visa applicants. The second applicant was a member of Mr Jethara’s family group. She is not a party to this proceeding.
The background facts relating to this matter are set out in the Minister’s outline of submissions filed on 4 March 2020.
On 30 June 2017, Mr Jethara applied for the visa on the basis of his employment as a restaurant manager at Tandoori Hut (sponsor).[1] Mr Jethara’s wife applied for the visa as a member of his family unit.[2]
[1] Court book (CB) 8
[2] CB 3
On 17 May 2018, the nomination application lodged for Mr Jethara was withdrawn. On the same day, a letter was sent to Mr Jethara inviting him to comment on information that the nomination listing him as the nominee had been withdrawn.[3] Mr Jethara did not respond.
[3] CB 126
On 19 June 2018, the delegate refused to grant the visa on the basis that Mr Jethara was not the subject of an approved nomination and did not meet cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).[4]
[4] CB 136
On 12 July 2018, Mr Jethara sought review of that decision in the Tribunal.[5]
[5] CB 140
On 6 December 2018, the Tribunal wrote to Mr Jethara requesting information or evidence as to whether the position identified in his visa application was the subject of an approved nomination or whether there was a pending application for review of a decision to refuse the nomination.[6]
[6] CB 156
Mr Jethara responded to the Tribunal on 6 January 2019 asking to meet “face to face” to respond to the Tribunal letter.[7] Mr Jethara was invited to a hearing scheduled for 28 February 2019. The night before the hearing, Mr Jethara sent an email to the Tribunal explaining that his employer had gone overseas, that it “did not make sense” to go to the hearing and stated: “therefore you can make [a] decision basis your rules”.[8]
[7] CB 161
[8] CB 165
On 1 March 2019, the Tribunal affirmed the decision under review.[9]
[9] CB 172
Tribunal decision
The Tribunal set out the background to the matter at paragraphs [1]-[14] of its decision. The Tribunal recorded that Mr Jethara had written to it shortly before the hearing, stating that he would not attend the hearing and that therefore it could make a decision on the basis of its rules.[10] The Tribunal identified that pursuant to s.360(2)(b) of the Migration Act 1958 (Cth) (Migration Act) it was empowered to deal with the application without inviting Mr Jethara to appear if he consented to having the Tribunal decide the matter without appearing before it. The Tribunal, noting Mr Jethara’s communication, proceeded to consider the matter on the basis of the available evidence and information before it.[11]
[10] CB 174 at [14]
[11] CB 174 at [15]
The Tribunal identified that cl 186.223 of Schedule 2 to the Migration Regulations relevantly required that the position to which the application related be the subject of an application for approval of a nomination in the Direct Entry stream.[12]
[12] CB 174-175 at [18]-[19]
The Tribunal noted that Mr Jethara was nominated by Mustaq Barkat and that the nomination was withdrawn on 17 May 2018.[13] The Tribunal also noted that on the information before it the nomination application was not the subject of the review and that Mr Jethara had not provided any further information to it since filing his review application.[14]
[13] CB 175 at [21]
[14] CB 175 at [22]
The Tribunal found that it had no discretion in this matter in circumstances where Mr Jethara did not have an employer who had successfully nominated him for a position. The Tribunal noted it could not remit the matter for further consideration and that, in any event, it would be futile to do that because there was no nomination outstanding or approved.[15] Accordingly, the Tribunal found that Mr Jethara did not satisfy cl 186.223.[16]
[15] CB 175 at [24]
[16] CB 175 at [25]
In relation to Mr Jethara’s wife, the Tribunal found that she was not the member of a family unit of a person who held a subclass 186 visa and therefore, also did not meet the criteria for the grant of the visa.[17]
[17] CB 175 at [27]-[28]
Accordingly, the Tribunal affirmed the decision under review.[18]
[18] CB 175 at [29]
These proceedings began with a show cause application filed on 5 April 2019. The application is on its face defective in that it is missing the third page, which would in the ordinary course set out the grounds of review. The consequence is that there are no grounds of review.
This was pointed out to Mr Jethara by the Minister’s solicitors in correspondence. That correspondence is dealt with in the affidavit of Katherine Louise Evans made on 4 March 2020. While at that time the Minister’s solicitors had received no response from Mr Jethara, he did send an email on 9 March 2020 which was tendered and I received as exhibit A1.
In that email, Mr Jethara tells the Minister’s solicitors that he wants to raise his issue before me, and that he is concerned that he did not get a fair chance to explain his concerns after his employer withdrew his sponsorship, and he wanted to know, in effect, what options were available to him. He said he was heading to court to obtain justice.
Assuming for the moment that those statements could constitute proper grounds of review, it is open to me to grant leave for the application to be amended to include them. That course, however, would only be undertaken by me if there was some point to it.
The other evidence I have before me is the affidavit filed by Mr Jethara with his application on 5 April 2019 and the court book filed on 27 May 2019.
The simple facts in this case are that Mr Jethara lost his employer sponsor and, because of that, he became ineligible for the class of visa he sought. He complains about problems with his authorised recipient, but correspondence was sent to the authorised recipient in accordance with Mr Jethara’s application, relevantly reproduced on page 6 of the court book. Page 127 of the court book is a letter sent from the Minister’s department to Mr Jethara at his recipient’s address dated 17 May 2018. Mr Jethara complains he did not receive that letter.
Even if there was some legal problem with the delegate’s decision, that would be beyond the Court’s jurisdiction. In any event, the Tribunal having jurisdiction to review purported delegate’s decisions, as well as valid ones, any legal defect before the delegate would have been cured by the review.
The Tribunal also sought comment from Mr Jethara about the withdrawal of his sponsor. He sought an extension of time which was granted. He responded by email on 7 January 2019.[19] In consequence, Mr Jethara was invited to a hearing before the Tribunal, but he did not appear. In the circumstances, the Tribunal proceeded to make a decision without giving him any further opportunity. I see no legal issue arising from that course taken by the Tribunal.
[19] see CB 174 at [12]
As is noted in the Minister’s submissions, the issue before the Tribunal was confined to whether Mr Jethara had an approved nomination for the purposes of clause 186.223 of schedule 2 to the Migration Regulations. In circumstances where the nomination in respect of Mr Jethara had been withdrawn, the only decision open to the Tribunal was to conclude that he did not meet the requirements for the grant of a visa.
Moreover, should any procedural or other error be established in the reasoning or process of the Tribunal, it would not go to jurisdiction and in any event it would be futile to remit the matter to the Tribunal. This is in circumstances where it could not be said that Mr Jethara was deprived of the possibility of a successful outcome before the Tribunal when only one outcome was possible.[20] The only decision open to the Tribunal was to affirm the delegate’s decision given that cl.186.223(1)(a) of Schedule 2 to the Migration Regulations required that the position to which the visa application applied, must be the one nominated in that application,[21] and the nomination had been withdrawn.
[20] Basnet v Minister for Home Affairs & Anor [2019] FCCA 3046 [25]-[30].
[21] Singh v Minister for Immigration [2017] FCAFC 105 at [88]-[90]; See also; Varsi v Minister for Immigration [2018] FCCA 1280 at [39]
In my view, there is no point in granting leave for the application to be amended because there is nothing Mr Jethara is able to put forward which would constitute a viable argument of jurisdictional error.
I will order that the application be dismissed as incompetent.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Jethara did not wish to be heard on costs.
I will order that Mr Jethara is 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 3 of Division 1 of Part 3 of schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 March 2020
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