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

[2021] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khanji v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2073

File number(s):

SYG 1739 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Subclass 186) Visa – where the applicant did not have an approved nomination – whether the Tribunal failed to approach the review with an open mind reasonably capable of persuasion as to the merits – where the applicant’s 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), s 476

Migration Regulations 1994 (Cth), cls 186.233, 186.233(3)

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

17

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the first respondent:

Mr J Pipolo, Mills Oakley

ORDERS

SYG 1739 of 2020

BETWEEN:

MOHAMMEDTARIQ MOHAMMEDYUSUF KHANJI

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL 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:

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 of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 June 2020, which affirmed the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant an Employer Nomination (Subclass 186) Visa (“the Visa”).

   Background

2. The applicant is a citizen of India and applied for the Visa on 18 November 2018 on the basis of a particular employer nomination.

3. On 4 September 2019, the delegate refused the application for the Visa on the basis that the applicant did not meet the criteria under cl 186.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) because he was not the subject of an approved nomination.

4. On 23 September 2019, the applicant applied to the Tribunal for review. The applicant was invited to attend a hearing by letter dated 9 June 2020. 

5. On 13 June 2020, the applicant responded to the request, and the Tribunal informed the applicant that the hearing would proceed. On 23 June 2020, the applicant provided further evidence in relation to the sponsor’s business.

6. On 25 June 2020, the applicant attended a hearing before the Tribunal. The Tribunal identified that the nomination made by the sponsor had been refused and that this was identified in the delegate’s decision. The Tribunal raised this issue with the applicant at the time of the hearing. It was in those circumstances the Tribunal found that it was satisfied that the applicant was not the subject of an approved nomination and did not meet the criteria under cl 186.233 of the Regulations. Consequently, the Tribunal affirmed the decision of the delegate under review. 

   Before the Court

7. These proceedings were commenced on 17 July 2020 and fixed for a show cause hearing today, 16 August 2021, under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

8. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant made reference to having made an earlier visa application, that he was advised by the Department to withdraw. Any error by the Department does not identify or enliven any jurisdiction of this Court to find that the decision of the Tribunal is the subject of reasonable argument for the relief claimed.

9. The applicant also made reference to being a hard working person who has contributed to Australia. Unfortunately, the Court has no power to determine the matter on compassionate or discretionary grounds. The applicant’s submissions, in substance, invited the Court to determine the matter on the grounds of impermissible merits review. Nothing said by the applicant identified an arguable case for the relief claimed.

   The Grounds

10. The grounds in the application are as follows: 

    Ground 1

    The Tribunal in its decision, at point 9, stated that I appeared before it on 29 June 2020 to give evidence and present arguments yet the decision of the Tribunal was made on 26 June 2020 therefore the Tribunal made up its mind prior to taking evidence from me.

    Ground 2

    I continue to believe that the position of Fleet Manager nomination was on the list when I applied.

    Ground 3

    I do not agree with the Tribunal that there was no nomination approved at the time of applying for the Visa and I do believe that the Tribunal undermined the value of the documents provided.

    Ground 4

    I will wait for copy of the document to be able to submit argument against the decision of the Tribunal.

    Consideration

11. In relation to Ground 1, there is an assertion that the Tribunal had made up its mind. The critical issue before the Tribunal was whether the applicant had an approved nomination. It is apparent that the applicant was on notice of the need for an approved nomination as a result of the decision of the delegate. The issue of the want of an approved nomination was also raised by the Tribunal at the hearing. There is no material before the Court to support a basis to find that the Tribunal did anything other than approach the review with an open mind reasonably capable of persuasion as to the merits. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend the Tribunal did not bring an independent and impartial mind to the determination of the matter on its merits. 

12. Where the applicant did not have an approved nomination before the Tribunal at the time of hearing, the applicant could not succeed. No arguable case of relevant error is disclosed by Ground 1.

13. In relation to Ground 2, the position that the applicant held does not engage with or identify any arguable case of relevant error. 

14. In relation to Ground 3, the disagreement in relation to the want of an approved nomination does not identify that there was any approved nomination before the Tribunal. It was open to the Tribunal, given the delegate’s decision, to find that there was no approved nomination. No arguable case of relevant error is disclosed by Ground 3.

15. Ground 4 does not engage with the Tribunal’s decision or identify any arguable case of relevant error.

16. 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).

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

I certify that the preceding seventeen (17) 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 October 2021