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

[2021] FCCA 2067

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kaur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2067     

File number(s):

SYG 2777 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination Subclass 187 visa – show cause hearing – whether arguable jurisdictional error – no arguable case for relief claimed – the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth) ss 359A, 359AA.

Migration Regulations1994 (Cth) cl 187.233.

Federal Circuit Court Rules 2001 (Cth) r 44.12.

Number of paragraphs:

11

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the Applicant:

In person.

Solicitor for the Respondents:

Ms Zinn, Mills Oakley.

Table of Corrections
23 September 2021	Appearances on coversheet amended

ORDERS

SYG 2777 of 2019

BETWEEN:

AMANPREET KAUR

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

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

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is a Show Cause Hearing in relation to decision of the Administrative Appeals Tribunal (“the Tribunal”), dated 2 October 2019 affirming a decision of a delegate of the first respondent (“the delegate”), not to grant the applicant a Regional Employer Nomination Subclass 187 visa (“the Visa”). 

2. The applicant is a citizen of India who applied for the visa on 23 June 2016.  On 7 March 2017, the delegate found that the applicant failed to meet the criteria for the granting of a visa. 

3. On 24 March 2017, the applicant applied for review.  The applicant was invited to and attended a hearing on 2 October 2019.   On 18 September 2019, the Tribunal wrote to the applicant explaining that her application in relation to the nominated position was one in which the nomination had not been approved. 

4. The Tribunal raised with the applicant that she did not meet the criteria under

   
   

   cl 187.233 of the Migration Regulations1994 (Cth) (“the Regulations”), because she did not have an approved nomination. The Tribunal, on the face of its reasons, complied with the obligation under s 359A of the Migration Act 1958 (Cth) (“the Act”).  The Tribunal referred to the applicant’s desire to study and to do something in the future and that she understood without a sponsor she couldn’t meet the criteria for the grant of the Visa.  The Tribunal found, in the absence of an approved nomination that, the applicant didn’t meet the primary criteria in

   
   

   cl 187.233 the Regulations and affirmed the delegate’s decision under review. 

   BEFORE THE COURT

5. At the commencement of the hearing, the Court explained to the applicant the nature of the Show Cause Hearing. The applicant orally submitted that she was continuing to work for the same employer at the same shop and that she had misunderstood the issue before the Court, being as to whether she was continuing to work at the same shop.  The applicant’s oral submissions, in substance, invited impermissible merits review.  Nothing said by the applicant identifies an arguable case for the relief claimed. 

   THE GROUNDS

6. The Grounds in the application are as follows:

   Ground 1

   1. That the Tribunal did not take into account relevant factors and thereby incurred a jurisdictional error.

   Particulars

   That the Tribunal did not consider information with regards to the applicant's nomination for the position identified in the visa application. That the Tribunal did not consider information with regard to current employment to establish that the nominated position of employment was still available to her.

   Ground 2

   2. That the Tribunal erred when it made an erroneous finding that the applicant did not meet public interest criteria 4020.

   GROUND 1

7. In relation to ground one, no relevant factor has been identified that the Tribunal was required to take into account under the Act or Regulations. The existence of current or available employment were not matters that the Tribunal was required to take into account. In the absence of an approved nomination, the applicant could not succeed before the Tribunal in circumstances where the Tribunal raised with the applicant the want of an approved nomination and complied with the requirements of s 359AA of the Act. 

8. Nor in relation to Ground 1, does the applicant’s reference to her current employment identify an arguable case of relevant error.  No arguable case for the relief claimed is raised by Ground 1.

   GROUND 2

9. In relation to Ground 1, this is not a case that turned on the application of the public interest criteria.  No arguable case for the relief claimed is made out by Ground 2. 

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

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

I certify that the preceding eleven (11) 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:       22 September 2021