Madhwani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 333
•5 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Madhwani v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 333
File number(s): CAG 57 of 2023 Judgment of: JUDGE STREET Date of judgment: 5 April 2024 Catchwords: MIGRATION – NO APPROVED NOMINATION – no reasonable prospect of success - orders made by registrar affirmed – application for review dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Migration Act 1958 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules
Cases cited: Spencer v The Commonwealth [2010] HCA 28 Division: Division 2 General Federal Law Number of paragraphs: 13 Date of hearing: 5 April 2024 Place: Sydney Applicants: Appeared in person Solicitors for the respondent: Sparke Helmore Lawyers ORDERS
CAG 57 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: RAVI MANUBHAI MADHWANI
First Applicant
POOJA RAVI MADHWANI
Second Applicant
AARVI RAVI MADHWANI
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
5 APRIL 2024
THE COURT ORDERS THAT:
1.The oral application for an adjournment is refused.
2.The court affirms the orders made by the registrar made on 23 February 2024.
3.The application for review, filed 20 March 2024, is dismissed.
4.The first and second applicants to pay the Ministers’ further costs fixed in the amount of $1,000.
5.Time is extended for appeal until the applicants have received the settled version of the published oral reasons of the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT 5 APRIL 2024
JUDGE STREET
This is an application for review of a registrar’s decision made on 23 February 2024, summarily dismissing the proceedings under rule 13.13(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules. The applicants’ application for review identified the following three grounds and also required an extension of time under section 477 of the Migration Act 1958 (Cth).
·Ground 1: The Administrative Appeals Tribunal failed to provide procedural fairness and natural justice.
·Ground 2: the Administrative Appeals Tribunal was harsh and unjust in its decision and should have afford me the benefit of the doubt.
·Ground 3: The Administrative Appeals Tribunal made an error in law and applied the regulations too strict.
The application for review and extension of time concerns a decision of the Administrative Appeals Tribunal made on 3 October 2023, which affirmed a delegate’s decision not to grant the applicants regional employer nomination permanent class RN visas.
The first applicant was the primary applicant for the grant of the regional employer nomination permanent class RN visa. The second applicant is his wife, and the third applicant is a child who has been the subject of an order appointing a litigation guardian. The Tribunal affirmed the delegate’s decision not to grant the applicants’ regional employer nomination permanent class RN visas in circumstances where the Tribunal found that the first applicant is not the subject of an approved nomination and therefore clause 187.233 is not met.
At the commencement of these proceedings, the Court explained to the applicants the nature of the proceedings, and the Court then identified the evidence before the Court. The first applicant identified that he had been told by his migration agent that the migration agent could obtain a fresh nomination if he got more time and that that would then permit him to succeed in these proceedings. That proposition from the migration agent was described by this Court as being nonsense. The applicants cannot cure the want of an approved nomination in these proceedings by obtaining a fresh nomination. The applicants identified that they had significant compassionate circumstances given their contribution that they have made, working over the last four years, staying here in Australia and having a young child who is about to start school and that they wanted an adjournment so that they could get the benefit of the agent assisting them to provide a further nomination.
The Court explained that there was no utility in doing so because a further nomination cannot cure the problem in the present case. The adjournment application was opposed by the Minister. There is no proper basis upon which this Court can adjourn the matter given that there would be no utility in doing so. The obtaining of a fresh nomination cannot cure the problem for the applicants in the present case. The Court explained that to the applicants and said they may be better off contacting a competent lawyer who can assist them in relation to seeking such visa as they may be entitled or making an application for the Minister to exercise his compassionate discretion by way of ministerial intervention. The Court explained that it does not have a power to determine this matter on compassionate grounds.
The applicants maintained their desire for an adjournment so as to try and give them more time to address their circumstances and because of the difficulties they would face on the turn. Those are not proper grounds upon which an adjournment can be granted, and it is for these reasons that the Court declined to grant an adjournment as an adjournment was not warranted in the interests of the administration of justice and would be of no utility in relation to the outcome of these proceedings. The applicants otherwise did not advance any fresh arguments in support of the grounds in their application.
The Minister’s submissions helpfully identified the background of the applicants in paragraphs [3] to [10], which is as follows:
[3] On 15 November 2019, the applicant, a citizen of India, applied for a Regional Sponsored Migration Scheme (subclass 187) visa (visa) in the Direct Entry Stream (Court Book (CB) 1-13) In the application, the applicant identified the nominated position of Post Office Manager and he was nominated for that position by Shree Krishna Enterprises Pty Ltd (sponsor). The second applicant is the applicant’s wife and was included in the application after it was lodged as a member of his family unit (CB 21-26). The third applicant is their daughter, who was born in Australia on 28 February 2020. She was also subsequently included in the visa application as a member of the applicant’s family unit.
[4] On 16 March 2020, a delegate of the Minister (delegate) invited the applicant to comment on information. Namely, he was advised that the sponsor’s application had been refused which meant his visa application could not be approved. The applicant was invited to provide a response within 28 days, or alternatively, withdraw the application (CB 127-130). On 30 March and 1 April 2020, the applicant asked the department to “delay” a decision in his matter because of difficulties with booking return travel to India arising from COVID-19. On 18 May 2020 the applicant was granted a further 28 days to respond. On 30 July 2020, a delegate wrote to the applicant noting that to date, no response had been received to the letter dated 16 March 2020. The delegate provided him with a further 28 days to respond to the information or withdraw his application (CB 131-136).
[5] On 7 January 2021, the delegate refused to grant the applicant the visa on the basis that the applicant was not the subject of an approved nomination as required by cl 187.233 of Schedule 2 of the Migration Regulations 1994 (Regulations) (CB 137-147). Having refused the applicant’s application, the delegate also found that the second and third applicants did not meet cl 187.311 of Schedule 2 of the Regulations because they were not members of the family unit of a person who held a Subclass 187 visa.
[6] On 15 Janaury 2021, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision (CB 159-162).
[7] On 20 July 2021, the sponsor appeared to have attempted to lodge a ‘Withdrawal’ form for the applicant’s application (CB 159-162).
[8] On 25 August 2023, the Tribunal invited the applicant to attend a hearing on 3 October 2023 (CB 163-166). On 1 September 2023, the applicant responded to the Tribunal with a completed ‘Response to hearing invitation form’ indicating that they would attend the hearing (CB 167-172)
[9] On 25 September 2023, the applicant requested that the hearing be postponed or for the Tribunal to “delay in reaching a decision” to allow the family to consider their options (CB 173-201). The applicant noted that third applicant was commencing preschool in 2024; the second applicant had received a positive VETASSESS assessment as a Restaurant Manager and was waiting for an invitation to apply for a 191 or 491 visa; and the second applicant’s employer had expressed a willingness to sponsor the applicants under the 482 visa program. On 2 October 2023, the Tribunal refused the request for postponement (CB 202-203).
[10] On 3 October 2023, the first and second applicants attended a hearing before the Tribunal (CB 204-206). On the same day, the Tribunal affirmed the delegate’s decision not to grant the visa (CB 209-212).
The Minister’s submissions also identified that there was a postponement request by the applicants when before the Tribunal, which was also refused in circumstances where it was made clear that there would be no utility in doing so. The Tribunal identified that the key issue was whether the applicant was the subject of an approved nomination as required by clause 187.233 of Schedule 2 of the regulations. The Tribunal identified that it had been provided with the delegate’s decision and that the nomination lodged by the sponsor was refused by the Minister on 16 March 2020, and that, accordingly, the applicants do not have an approved nomination, and the Tribunal found that the applicants were not the subject of an approved nomination and that the criteria under clause 187.233 was not met and affirmed the decision under review.
In relation to Ground 1 of the application for review, the applicant contends that he was denied procedural fairness and natural justice because he has relevant evidence that is related to his occupation as well as the work he performed and took issue with the Minister in relation to the assertion that the primary criteria in respect of an approved nomination was not met and referred to the work he had undertaken and his references. Nothing in ground 1 identifies any arguable error by the tribunal. The particulars provided fail to come to grips with the essential criteria that there must exist an approved nomination.
The reference to obtaining further evidence was not something that could cure the want of the approved nomination. The applicant’s reference to his experience and his work and his references was an invitation to merits review and does not identify any relevant error. On the face of the material before the Court, the Tribunal complied with its statutory powers in the conduct of the review. The applicants had a real and meaningful hearing, and the Tribunal engaged with the applicants’ contentions. It was legally reasonable for the tribunal to refuse an adjournment in circumstances where there was no utility in doing so. In those circumstances, the Court finds there was no denial of procedural fairness or natural justice by the Tribunal. No arguable jurisdictional error is made out by Ground 1.
In relation to Ground 2 that alleges the decision was harsh and unjust and makes reference to the work experience criteria being met, this fails again to come to grips with the mandatory and essential criteria that the applicants had an approved nomination. They did not have such an approved nomination. Whatever the work experience of the applicant, it did not overcome the need for an approved nomination. The reference to the decision being harsh or unjust does not identify any legal unreasonableness or any procedural unfairness that identifies any arguable error by the Tribunal. No arguable error is made out by Ground 2.
In relation to ground 3, the applicant alleges that the Tribunal made an error in relation to the strict application of the regulations and that he should have been given the benefit of the doubt. The mandatory criteria is exactly that; it is criteria that must be met. It is strict criteria. The Tribunal had no power to waive that criteria. There was no opportunity to give the applicants the benefit of the doubt because the criteria either was met or it was not met. In the present case, it is clear that the applicants did not have an approved nomination, and the applicants’ reference to the benefit of the doubt is, again, an invitation to merits review that identifies no arguable case of relevant error.
The Court has taken into account the principles and caution to be exercised in Spencer v The Commonwealth [2010] HCA 28 and that the summary dismissal of an application, including an application under section 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), is a power that must be exercised with caution and only in the clearest of cases. The Court is clearly satisfied in the present case that none of the three grounds identified by the applicant identify any arguable case of relevant error by the tribunal and have no reasonable prospect of success. The applicants’ application for an extension of time has no reasonable prospect of success in these circumstances. In these circumstances there is no utility in setting aside the registrar orders and reinstating the proceedings that were summarily dismissed. The Court affirms the orders made by the registrar and dismisses the application for review. The Minister is entitled to a further costs order applying the ordinary rule that costs follow the event.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 26 April 2024
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