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

[2022] FedCFamC2G 274

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Kannangara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 274  

File number(s):	DNG 13 of 2021
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	19 April 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – Regional Employer visa – no approved nomination by employer – whether there was jurisdictional error – no jurisdictional error found – application dismissed.
Legislation:	Migrations Regulations 1994 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	25
Date of last submission/s:	13 April 2022
Date of hearing:	13 April 2022
Place:	Parramatta
Solicitor for the Applicant:	The Applicant appeared in person
Solicitor for the Respondents:	Mr Pasas

ORDERS

DNG 13 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ACHINI DILRUKSHI NEHA KANNANGARA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	19 APRIL 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs fixed in the amount of $3,930.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. On 2 March 2018, the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa (“Regional Employer visa”). The applicant sought the Regional Employer visa in the Direct Entry scheme, to work in the nominated position of Contract Administrator for Alpha Supper Cleaning Services Pty Ltd (“Alpha”)

2. On 3 August 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the Regional Employer visa as the applicant did not meet the criteria required in cl 187.233(3) of Schedule 2 to the Migrations Regulations 1994 (Cth) (“the Regulations”) which required the applicant to be the subject of an approved nomination by an employer. The delegate found the nomination by her employer, Alpha, had been refused by the Department of Immigration on 7 June 2019. On 22 July 2021, the Administrative Appeals Tribunal (“the Tribunal”) affirmed that decision following an application to it for merits review by Alpha.

3. The applicant sought merits review by the Tribunal. In a decision dated 31 August 2021, the Tribunal affirmed the decision of the delegate not to grant the applicant her Regional Employer visa.

4. The applicant now seeks judicial review of the Tribunal’s decision. The respondent seeks summary dismissal of the application.

   THE TRIBUNAL’S DECISION

5. The Tribunal’s decision is relatively short. After setting out the procedural background and relevant legislation, the Tribunal noted that it had previously affirmed a decision to refuse the application by the nominator of the applicant, Alpha Supper Cleaning Services Pty Ltd.

6. At the hearing, the applicant indicated that she was aware that the nomination by her employer had been refused. Documentation was provided to the Tribunal that indicated the applicant still resided in Darwin and was still employed by Alpha. Evidence as to the applicant’s finances and medical condition was also provided.

7. The Tribunal found that as there was no approved nomination, the provisions of cl 187.223(3) of the Regulations were not met and affirmed the delegate’s decision to refuse the applicant her Regional Employer visa.

   GROUNDS OF JUDICIAL REVIEW

8. The Grounds of Judicial review are set out in an Application filed with the Court on 22 September 2021. They are as follows verbatim:

   1.   Applicant did not request a delay in the decision making.

   2.   Applicant was a full time employee for the last two years

   3.   Applicant performed the tasks of an occupation, specified by the minister for the last two years.

   (Please refer to Annexure 01 and 02.)

9. Annexures 01 and 02 of the applicant’s Affidavit sworn 17 September 2021 are attachment of the Tribunal’s decision in relation to the applicant’s Regional Employer visa and the Tribunal’s decision in relation to Alpha’s approval for nomination.

10. The applicant filed a further Application on 20 January 2022 which included the following grounds verbatim:

    1.   Applicant worked full-time in nominated position for two years

    2.   Applicant performed the tasks of an occupation specified by the minister for last two years.

    Other grounds are attached in a separate paper. Please see Annexure 01, Annexure 02, Annexure 03, Annexure 04 Annexure 05 and annexure 06. Attached to affidavit.

11. The applicant filed an Affidavit with her further Application on 20 January 2022. These Annexures do not contain any ground of review, instead they include the two Tribunal decisions attached to the applicant’s first Affidavit, payslips, a letter, an offer of employment and the applicant’s written submissions.

12. The applicant further states that the refused nomination lodged by Alpha should be approved as the nominee has already worked for two years.  In doing so, she has shown commitment towards the work and the Northern Territory

    THE APPLICANT’S SUBMISSIONS

13. The applicant appeared before the Court unrepresented. The applicant did not require the assistance of an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and had been provided with a copy of the First Respondent’s written submissions. The Court also ensured that the applicant had access to a pen and paper to take notes during the course of the hearing should she so wish to.

14. The Court explained that it was undertaking judicial review not merits review and the difference between the two types of review. The Court also explained how the hearing would be conducted.

15. The applicant filed written submissions on 22 January 2022.  The applicant complains that her Regional Employer visa was refused simply saying that there was no approved nomination.  The applicant states that this is injustice as no consideration was given as to why the nomination was refused or whether it was fair enough to refuse the nomination.  The applicant then goes on to make a number of submissions in relation to the nomination by her employer.  The Court does not propose to quote these as they are irrelevant to the situation as regards this applicant.  The applicant concludes her submission by saying that the nomination should have been approved and the Regional Employer visa should therefore be granted and she looks to the Court for justice.

16. During oral submissions, the Court discussed with the applicant that it could only consider her case and that the situation in relation to the refusal of the nomination by her employer was not before the Court. Accordingly, in the absence of an approved nomination, the applicant was in a very difficult position as regards her Regional Employer visa application.

17. The Court indicated to the applicant that there was no adverse reflection upon her in the decision by the Tribunal to refuse the nomination by her employer. The Court did not doubt that the applicant had been a valued employee who had worked hard for Alpha.

    THE RESPONDENT’S SUBMISSIONS

18. After setting out the background and history of the matter, the legal representative for the first respondent notes that the amended Application filed by the applicant seeks the refused nomination lodged by ASE services Pty Ltd should be approved as the applicant had already worked for two years.  The legal representative for the first respondent notes that the Court does not have the power, in these proceedings, to make any order in respect of a separate decision in respect of the nomination application.  The respondent notes that in her Affidavit filed on 20 January 2022, the applicant sets out further grounds of review that deal with her work for the company and why the nomination by the company should have been approved.

19. The legal representative for the first respondent concludes that even if the Tribunal did err in some presently un-pleaded respect that the error would be immaterial and, it would be futile to remit the matter to the Tribunal as, in the absence of an approved nomination the outcome would be the same.  There was nothing erroneous in the determination by the Tribunal to only consider whether or not there was an approved nomination in respect of the applicant.  This was an essential requirement for the Regional Employer visa that the applicant sought to be granted.

    CONSIDERATION

20. The applicant’s grounds of judicial review, such as they are, are misconceived.  In effect, through her application for judicial review, the applicant seeks to overturn a separate decision in relation to the refusal of the nomination by her employer.  As pointed out by the first respondent legal representative, this is not a matter that the Court can interfere with, it being a separate matter to the refusal to grant the applicant her Regional Employer visa.

21. It is an essential criteria under the Regulations in order to be granted the type of visa the applicant sought, that she needed to be the subject of an approved nomination by an employer.  In this case, the nomination of her employer was refused by both the delegate and as set out in the Tribunal’s decision, affirmed by the Tribunal prior to the applicant’s matter being considered.

22. As the applicant was not the subject of an approved nomination, the decision of the Tribunal was the only decision it could make.  The fact that the applicant may have been a satisfactory and loyal employee of the nominator for a period of two years is irrelevant to the issue of whether or not she can be granted the visa that she sought.

23. None of the matters raised by the applicant show any legal error by the Tribunal.  The Court agrees with the submission by the first respondent’s legal representative, that even if there was an error, it would not be material and would be futile because the Tribunal would be required to come to the same decision even if the matter were remitted to them for reconsideration.

24. As the applicant was unrepresented, the Court has carefully perused the Tribunal decision record and confirmed no unarticulated jurisdictional error was present.  In these circumstances, the Court has no option other than to dismiss the application with costs.

25. The Court recommends that the applicant seek professional advice as to what further options may be open to her in respect of a further visa.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       19 April 2022