Kapoor v Minister for Immigration

[2018] FCCA 2596

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAPOOR & ANOR v MINISTER FOR IMMIGRATION [2018] FCCA 2596

Catchwords:
MIGRATION – Application for judicial review – application to set aside decision of Registrar – matter dismissed for Applicant’s failure to appear – no error by Registrar – no error by delegate – application in a case dismissed.

Legislation:

Migration Regulations 1994 (Cth), cl.457.223(4)

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(c)

First Applicant: NIKHIL KAPOOR

Second Applicant: SHAKTI VOHRA

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: MLG 2091 of 2017

Judgment of: Judge McNab

Hearing date: 1 August 2018

Date of Last Submission: 1 August 2018

Delivered at: Melbourne

Delivered on: 1 August 2018

REPRESENTATION

Applicant in person

Counsel for the First Respondent: Mr. N. Rogers

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application in a case filed 20 July 2018 be dismissed.

2. The Applicant pay the respondent’s costs fixed in the sum of $750.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2091 of 2017

NIKHIL KAPOOR

First Applicant

SHAKTI VOHRA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE – REVISED FROM TRANSCRIPT)

1. This is an application filed 19 July 2018 to set aside an order of Registrar Luxton made on 13 June 2018 where he ordered that the Applicant’s judicial review application be dismissed. It was dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) by reason of the absence of the Applicant, and Registrar Luxton ordered the Applicant pay the First Respondent’s costs in the proceeding fixed in a sum of $1467. The substantive application was filed on 28 September 2017 and that application provided for the time and date of the directions hearing as 13 June 2018.

2. The application was signed by the Applicant. There is no reference to any lawyer or other agent filing the application. The Applicant has sworn an affidavit in an application in a case which was filed on

   
   

   19 July 2018. The grounds of the application and orders sought in the application are:

   1.I would request the respected registrar to relist my Federal Circuit Court case file number – MLG 2091 of 2017. 

   2.I could not attend the scheduled hearing on 13 June 2018 at 10 am. 

   3.My daughter was really sick these are circumstances beyond my control. I was not represented in my matter and I’ve overlooked the dates. 

   4.There is a jurisdictional error made by the member for Minister of Home Affairs. 

   5.The member has made a decision that there was no approved nomination in place when the decision was made.

   6.I was not given a fair hearing to explain my matter. 

   7.I would request the honourable registrar to order the decision of the Minister be quashed and to give me an opportunity to explain my matter again to the Minster of Home Affairs.

3. The First Applicant has filed that application on behalf of himself and his wife Shakti Vohra. The body of his affidavit, sworn on

   
   

   26 September 2017, supporting his application in a case, sets out the relief that he seeks in the application.

4. Mr Kapoor attended the Court this morning and made a comment from the Bar table that he had no notice of the hearing date. 

5. In the circumstances, he gave sworn evidence and was cross-examined by the representative for the Minister. He gave sworn evidence that:

   a)he did not receive notification of the hearing date;

   b)that he claimed that the first time that he received a copy of the application was a week before this hearing; and

   c)

   the address that was provided on the application

   
   

   (17 Hamish Drive, Tarneit) was not his address.

6. He stated that he had not lived in Tarneit and claimed that his agent had lodged the document. He gave confused evidence in relation to the circumstances of the application being filed. 

7. He noted that he was present with the agent when details of the address were changed on the application, but then said, subsequently, that he did not come to the registry on the day that the application was filed. In his affidavit, he gave evidence that his daughter was really sick and that those are circumstances beyond his control, but also states he was not represented in the matter and overlooked the dates, which is a contradiction.

8. I am not satisfied that the Applicant has provided a reasonable explanation for his absence before the directions hearing on

   
   

   13 June 2018. Further, I am not satisfied that there are material arguments available to the Applicant that might reasonably lead to the making of an order different to that sought to be set aside or an order of this Court that the decision of the delegate should be set aside. The substantive application provides the following grounds:

   1.There is a jurisdictional error made by a member of the Department of Immigration and Border Protection. The member has made a decision that there was no approved nomination in place when the decision was made. I would bring this to the attention of the respected judge that there was a pending nomination when the member has made its decision.  There is a jurisdictional error made by the member for the Department of Immigration and Border Protection and has not given me an opportunity to get my 457 visa. I would request the honourable registrar look into this matter, reverse the decision made (by) the member for Department of Immigration and Border Protection and remit the matter to the Department of Immigration and Border Protection. I would also like to bring this to the attention that I have not been given a fair hearing to explain my case.

9. The affidavit filed with the application, which was sworn

   
   

   26 September 2017, annexed the decision record of the delegate which was made on 30 May 2016. The delegate sets out the criteria for a subclass 457 temporary work skilled visa. The delegate identified the primary criteria in cl.457.223(4) which provides:

   The Applicant meets the requirements of this subclause if: 

   (a) each of the following applies;

   (1)a nomination of an occupation in relation to the Applicant has been approved under section 140GB of the Act;

   (2)the nomination was made by a person who was a standard business sponsor at the time that the nomination was approved; and

   (3)the approval of the nomination has not ceased as provided for in regulation 2.75.

10. The delegate stated that:

    On 17 February 2016, the primary Applicant was advised that their prospective employer, the Trustee of Sharaj Family Trust, did not have an approved nomination in place for them and was provided with an opportunity to comment, including evidence that they are the subject of an approved nomination or withdraw the application in writing.

    At this time, the primary Applicant is not the subject of an approved nomination and has not withdrawn the application in writing. One of the criteria for the grant of a temporary work skilled subclass 457 visa is an approved nomination. The primary Applicant is not the subject of an approved nomination at this time.

11. The delegate then went on to consider the Second Applicant and found that as the First Applicant was found not to satisfy the prescribed criteria for the grant of a subclass 457 visa that the Second Applicant is not a member of the family unit of a person who is the holder of a 457 visa. There is nothing that has been said by the First Applicant or contained within the material that has been put before the Court which would persuade the Court that there was any error in the approach taken by the delegate.

Conclusion

1. In the above circumstances, in combination with the unsatisfactory explanation for the failure to attend the Court on 13 June 2018, I dismiss the application in a case.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  12 September 2018