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

[2021] FCCA 2065

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2065  

File number(s):

SYG 683 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION - Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Subclass 187) visa - whether the Tribunal denied the applicants natural justice in the review – no arguable case for relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

 Migration Act 1958 (Cth) s 476

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Regulations 1994 (Cth) cl 186.233

Number of paragraphs:

10

Date of hearing:

16 August 2021

Place: 

Sydney

Solicitors for the applicant:

In person

Solicitors for the first respondent:

Ms S Roberts, Mills Oakley

ORDERS

SYG 683 of 2019

BETWEEN:

GURPREET KAUR
First applicant

MANDEEP SINGH
Second applicant

SANIB SINGH
Third applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second respondent

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

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The first and second applicant pay the first respondent’s costs fixed in the amount of $3,737.00

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under section 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 25 February 2019, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Regional Employer Nomination (Permanent) (Subclass 187) visas (“the Visas”).

2. The first applicant applied for the visa on 24 April 2017.  The second applicant is her husband and the third applicant is her son, who has been the subject of a litigation guardian order. 

3. These proceedings were fixed today for a show-cause hearing.  At the commencement of the hearing, the Court explained to the applicants the nature of the show-cause hearing and the applicants confirmed they understood the explanation given by the Court. 

4. The first applicant indicated that she disagreed with the Tribunal’s decision, because it was all the employer’s fault and was not her fault.  The Tribunal had no power to decide the matter on compassionate or discretionary grounds.  The first applicant was the subject of a refusal of the visa by the delegate on 11 April 2019, because the first applicant did not have an approved nomination. 

5. On 25 April 2018, the applicants applied for review to the Tribunal. On 7 December 2018,   the Tribunal wrote to the applicants explaining that the first applicant did not have an approved nomination.  The applicants responded to the Tribunal’s letter and accordingly, the Tribunal fixed the matter for a hearing on 26 February 2019, which the applicants attended to give evidence and present arguments.

6. The Tribunal found that the first applicant did not have an approved nomination and, accordingly, did not meet the criteria under clause 187.223 of the Migration Regulations 1994 (Cth) (“the Regulations”).

7. The first applicant submitted orally to the Court that it was the employer’s fault and not hers.  That does not identify any arguable error by the Tribunal in the conduct of the review.  The applicant’s disagreement with the outcome does not identify an arguable case of relevant error.  Nothing said by the first applicant supports an arguable case for the relief claimed. 

   THE GROUNDS

8. The grounds in the application are as follows:

   Ground 1

   The First Respondent made an error not providing the applicant an opportunity to find the further sponsor and the Second Respondent also failed to provide this opportunity to the Applicant.

   Ground 2

   The applicant was failed to attend the natural justice as the Second Respondent did not provide with an opportunity to the criteria of visa.

   Ground 3

   The Second Respondent failed to provide with an opportunity to the applicant to comment on the materials, which relied by the Second Respondent. Thus, the Second Respondent made jurisdictional error.

   CONSIDERATION

9. In relation to Ground 1, contrary to the first applicant’s assertion, the first applicant was given an opportunity to respond to the s 359 of the Act letter by the Tribunal. The applicants did so and attended a hearing before the Tribunal.  The first applicant was on notice that it was an essential criteria for her to have an approved nomination.  The first applicant’s criticisms of the employer do not provide any basis to find that there was any arguable error by the Tribunal.  No arguable case of relevant error is disclosed by Ground 1. 

10. In relation to Ground 2, without particulars, this ground is incapable of identifying an arguable case of relevant error.  It is apparent that the applicant was on notice of the need for an approved nomination as identified above.  No arguable case for relief claimed is made out by Ground 2.

11. In relation to Ground 3, this again seeks to repeat the assertion, which is incorrect, that the applicant did not have an opportunity to comment on the fact that there was not an approved nomination. The applicants did respond to the s 359 of the Act letter and attended a hearing where the issue was again aired by the Tribunal.  No arguable case of relevant error is disclosed by Ground 3.

12. The Court is not satisfied the application has raised an arguable case for the relief claimed. The Court is satisfied this was an appropriate matter in which to exercise the Court’s powers under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth).

13. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       8 November 2021