Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1580
•13 December 2021
FEDERAL COURT OF AUSTRALIA
Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1580
Appeal from: Application for leave to appeal from: Kumar & Ors v Minister for Immigration & Anor [2020] FCCA 999 File number: VID 226 of 2020 Judgment of: MOSHINSKY J Date of judgment: 13 December 2021 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court of Australia – employer nomination visa – where the employer nomination had not been approved – whether proposed appeal had any merit – application dismissed Legislation: Migration Act 1958 (Cth), s 359A
Migration Regulations 1994 (Cth), Sch 2, cl 186.223
Federal Circuit Court Rules 2001, rr 13.03C, 44.12
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: 13 December 2021 Solicitor for the Applicants: Mr GSR Singh, Quantum Legal Advisory & Migration Consultants Pty Ltd Solicitor for the First Respondent: Mr D Brown, Australian Government Solicitor Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 226 of 2020 BETWEEN: SUNIL KUMAR
First Applicant
KAVYA JANGRA
Second Applicant
NISHA KUMARI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
13 DECEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicants pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
This is an application for leave to appeal from orders of the Federal Circuit Court of Australia (as it was then named) (the FCCA). The first applicant, who is from India, applied for an Employer Nomination (Permanent) (Class EN) visa. The second and third applicants are members of the first applicant’s family and applied for visas on that basis. The visas were refused by a delegate. The refusal was affirmed by the Administrative Appeals Tribunal (the Tribunal). The applicants applied to the FCCA for judicial review of that decision. The matter was listed for a show cause hearing. Following that hearing, the first applicant’s application for judicial review was dismissed, pursuant to r 44.12 of the Federal Circuit Court Rules 2001, on the basis that he did not have an arguable case.
As the order of the FCCA was interlocutory, the applicants need leave to appeal. The applicants have filed an application for leave to appeal (dated 30 March 2020). At the time this was filed, the applicants were not legally represented. The application for leave, and the accompanying draft notice of appeal, contain a list of 31 grounds.
In brief outline, the background to the present application is as follows:
(a)On 30 December 2015, the first applicant applied for an Employer Nomination (Permanent) (Class EN) visa. The application referred to Sonu Motors Pty Ltd (Sonu Motors) as the employer. At about the same time, Sonu Motors applied for approval of its nomination of the first applicant’s position.
(b)On 14 July 2016, a delegate of the first respondent (the Minister) refused Sonu Motors’ application for approval of the nomination.
(c)On 14 September 2016, a delegate of the Minister refused the first applicant’s application for the visa.
(d)On 22 November 2018, a hearing took place before the Tribunal. This was a combined hearing of an application for review by Sonu Motors and an application for review brought by the applicants.
(e)On 10 December 2018, the Tribunal affirmed the decision of the delegate to refuse Sonu Motors’ application.
(f)On 18 December 2018, the Tribunal wrote to the applicants, pursuant to s 359A of the Migration Act 1958 (Cth) giving an opportunity to comment. No comments were received.
(g)On 7 January 2019, the Tribunal decided to affirm the decision to refuse the applicants’ application for visas. The Tribunal stated that the first applicant had only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. The Tribunal found that the first applicant did not satisfy the requirements of cl 186.223 of Sch 2 to the Migration Regulations 1994 (Cth) in circumstances where there was no approved employer nomination of the first applicant’s position. It followed that the second and third applicants did not meet the criteria for subclass 186 visas as members of the family unit of a person who had satisfied the primary criteria.
(h)The applicants applied to the FCCA for judicial review of the Tribunal’s decision. The Minister sought a show cause hearing and the matter was listed for a show cause hearing on 17 March 2020.
(i)Following the hearing on 17 March 2020, the primary judge gave ex tempore reasons for judgment and made an order that the first applicant’s application for judicial review be dismissed pursuant to r 44.12 of the Federal Circuit Court Rules. The third applicant’s application for judicial review was also dismissed pursuant to r 44.12. In relation to the second applicant, the application for judicial review was dismissed, pursuant to r 13.03C(1)(c), on the basis that the second applicant had failed to appear.
The applicants apply for leave to appeal from the orders of the FCCA. In determining whether leave to appeal should be granted the relevant considerations are: whether, in all the circumstances, the decision at first instance is attended by sufficient doubt to warrant its reconsideration by the Court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399.
The basic difficulty for the first applicant is that the relevant criteria for the Subclass 186 visa include cl 186.223 of Sch 2 of the Migration Act. That clause requires an approved employer nomination in respect of the position. However, here the employer nomination was not approved.
In the present case, the primary judge clearly and carefully considered each ground in the application for judicial review. His Honour provided cogent reasons for holding that each ground was not arguable.
At the hearing today, the solicitor acting for the applicants raised two main issues. The first related to the employer nomination. The argument was, in summary, that the applicants should be afforded the opportunity to investigate the reasons for the refusal of approval of the employer nomination, with a view to challenging that decision. The difficulty, however, is that the issue before the primary judge was whether there was an arguable case of jurisdictional error by the Tribunal. At the time of the Tribunal decision, the employer nomination application had not been approved. The Tribunal proceeded on that basis. It is difficult to see how the argument raised today suggests any error by the primary judge.
Secondly, the solicitor for the applicants submitted that the first applicant (who appeared for himself before the primary judge) had been taken by surprise by the show cause nature of the hearing. The application for leave to appeal was stood down for about one hour to enable the solicitor for the Minister to obtain relevant documents from the file, and provide copies of these to the solicitor for the applicants and the Court. When the matter resumed, the solicitor for the Minister took me through a bundle of documents that demonstrates that the applicants were clearly on notice of the show cause nature of the hearing.
The grounds set out in the application for leave, and the draft notice of appeal, do not appear to raise any arguable case that the primary judge erred.
In light of these matters, I consider that the proposed appeal lacks any merit. In these circumstances, I consider that the application for leave to appeal should be dismissed.
[Following the delivery of reasons, a discussion took place regarding costs.]
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 23 December 2021
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