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

[2021] FCCA 2117

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2117

File number(s):

SYG984 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination (Class EN) (Subclass 186) Visas – where the applicants did not have an approved nomination – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 359A, 476

Migration Regulations 1994 (Cth) sch 2; cl 186.223

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

14

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Ms K Nash, Sparke Helmore

ORDERS

SYG984 of 2020

BETWEEN:

FARHATULLA MOHAMMED KHAN

First Applicant

SARA TABASSUM

Second Applicant

MOHAMMED RAFATHULLA KHAN (and others named in the Schedule)

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:	18 AUGUST 2021

THE COURT ORDERS THAT:

1.The first applicant is appointed as litigation guardian for the third, fourth and fifth applicants under r 11.11(1) of the Federal Circuit Court Rules 2001 (Cth) and the Court dispenses with the requirements of rr 11.11(2) and 11.13 of the Federal Circuit Court Rules 2001 (Cth).

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

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

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 9 April 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Regional Employer Nomination (Class EN) (Subclass 186) Visas (“the Visas”).

   Background

2. The applicants are citizens of India. The second applicant is the spouse or the wife of the first applicant. The third to fifth applicants are children in respect of whom there has been a litigation guardian order made by this Court.

3. On 28 September 2016, the applicants applied for the Visas. On 25 October 2017, the applicants were invited to comment on the fact that there was no approved nomination.

4. On 12 December 2017, the delegate refused the grant of the Visas because the applicants did not have an approved nomination and, accordingly, did not meet the criteria under cl 186.223 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

5. On 18 December 2017, the applicants applied for a review to the Tribunal. On 2 March 2020, the Tribunal sent the applicants an invitation to attend a hearing. On 5 March 2020, the Tribunal sent the applicants a letter pursuant to s 359A of the Act, inviting them to comment on the fact that there was no approved nomination. That letter explained that the applicants had to respond within the timeframe identified, and the applicants did not do so.

6. On 8 April 2020, the applicants attending the hearing by telephone. The Tribunal found that there was no approved nomination and, accordingly, identified that the applicants did not meet cl 186.223 of the Regulations because they had no approved nomination. Consequently, the Tribunal affirmed the decision of the delegate under review.

   Before the Court

7. These proceedings were commenced on 24 April 2020, and were fixed for a show cause hearing today, 18 August 2021.

8. At the commencement of the show cause hearing, the Court explained to the applicants the nature of the hearing. The first applicant identified that he had worked hard, that he had been a law-abiding citizen and had done everything he could to advance his application.

9. Sadly, none of those circumstances engage any basis to find that the Tribunal’s decision is the subject of an arguable case of relevant error. This Court does not have power to determine the matter on compassionate or discretionary grounds. In substance, the first applicant’s submissions invited impermissible merits review.

   The Grounds

10. The Grounds in the application are as follows:

    Ground 1

    As, I am Mohammed Faratulla Khan came to Sydney, Australia on 25 Jan 2014 on 489 visa sponsored by phython technologies who are located at, 451 Burwood Road, Belmore, NSW 2192.

    Ground 2

    After working in phython technologies for more than 2 years, I applied for 186 visa (employer nomination permanent visa). My visa was refused and I approached AAT for review against my visa refusal. AAT made a decision on 9^th April 2020, that decision is made not to grant Employer Nomination (Permanent) class EN visas.

    Ground 3

    As I am not satisfied by decision given by AAT wants to apply for review by Federal court and for a fair trial.

    Thank you.

    Consideration

11. In substance, the Grounds set out the history of the application and do not identify an arguable error. Dissatisfaction with the decision, or disagreement with the decision, does not identify an arguable case of relevant error. Grounds 1 and 2 are mere background and don’t identify any arguable jurisdictional error. Contrary to ground 3 the material before the Court supports the applicant having a real and meaningful hearing. There is no basis to find the applicant had an unfair hearing. Dissatisfaction with the outcome merely invites impermissible merits review.

12. Where the applicants did not have an approved nomination, the applicants could not succeed before the Tribunal. It is apparent that the absence of an approved nomination was raised by the Tribunal with the applicants in a s 359A letter. The applicants were also on notice of the fact that they did not have an approved nomination as a result of the delegate’s decision.

13. No arguable case of relevant error is raised by the Grounds 1, 2 or 3 identified in the application. The Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied 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).

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

I certify that the preceding fourteen (14) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 6 October 2021

SCHEDULE OF PARTIES

SYG984 of 2020
Applicants
Fourth Applicant:	AREEBA SHAISTA
Fifth Applicant:	ALISHA SHAISTA