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

[2021] FCCA 2069

FEDERAL CIRCUIT COURT OF AUSTRALIA

Mali v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2069

File number(s):

SYG 763 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Subclass 186) Visas – where the first applicant 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 Rule 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 359A, 476

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Regulations 1994 (Cth) cl 186.223

Number of paragraphs:

14

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First and second applicants, in person

Solicitor for the first respondent:

Mr E Taylor, Mills Oakley

ORDERS

SYG 763 of 2020

BETWEEN:

VEENA MALI

First Applicant

VENKAT REDDY MALI

Second Applicant

SRIJA REDDY MALI

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:	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 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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 21 February 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Employer Nomination (Subclass 186) Visas (“the Visas”).

   Background

2. The first applicant is a citizen of India, the second applicant is her husband, and the third applicant is her daughter in respect of whom there has been the litigation guardian order made. 

3. The matter was fixed for a show cause hearing today, 16 August 2021, under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The Court explained to the applicants the nature of the show cause hearing.

4. On 18 September 2017, the delegate found that the first applicant did not have an approved nomination and, accordingly, did not meet the criteria under cl 186.223 of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. On 8 October 2017, the applicants applied to the Tribunal for review. On 6 February 2020, the Tribunal wrote to the applicants, inviting the applicants to comment on the fact that there was no approved nomination. No response was received within the time specified.

6. In its decision, dated 21 February 2020, the Tribunal identified that the critical issue was whether the applicants met the criteria. The Tribunal referred to the letter sent to the applicants pursuant to s 359A of the Act, and the absence of a response, and found that the first applicant was not the subject of an approved nomination. Consequently, the Tribunal affirmed the decision of the delegate under review. 

   Before the Court

7. These proceedings were commenced on 25 March 2020. The Ground in the application is as follows:

   Tribunal ‘acted in a manifestly unreasonable and unconscionable way’. Tribunal failed to inform me either by phone or by email, when aware of that Frauds are committed by Agents and employers toward ENS-186 visa applicants. ‘The decision involved a failure to give proper, genuine and realistic consideration to my review application hence, the decision was unconscionable’ giving rise to reviewable error.

8. The first applicant submitted that she cannot go back and that she wanted the Court to let her stay in Australia. Neither the Tribunal nor the Court has any power to determine the matter on compassionate or discretionary grounds. In substance, the first applicant’s oral submissions invite the Court to determine the matter on the basis of the merits. The Court has no power to review the merits or to grant relief based on compassionate or discretionary grounds.

9. In substance, the first applicant’s oral submissions invited impermissible merits review. The first applicant’s desire not to go back to India and that it would be difficult for her to obtain a job, in substance, invited the Court to determine the matter on compassionate or discretionary grounds. Nothing said by the first applicant identifies an arguable case for the relief claimed. 

10. In relation to the Ground in the application, the Tribunal properly and correctly identified that the critical issue was whether the applicants met the criteria of having an approved nomination. There is no substance in the assertion that there was a failure to give genuine or realistic consideration to the review application. In circumstances where the first applicant did not have an approved nomination, the applicants could not succeed.

11. There is no circumstance identified that the Tribunal failed to take into account that was material in those circumstances. The assertion that the Tribunal acted unreasonably or unconscionably is also, in substance, an invitation to impermissible merits review. No arguable case of relevant error is disclosed by Ground 1. 

12. The absence of an approved nomination provides an evident and intelligible justification for the adverse decision by the Tribunal. No arguable case is revealed by either Ground 1 or the particulars to Ground 1. The Court notes that the content of the affidavit appears to do no more than repeat the Grounds that are identified in the application and has not identified any arguable case of relevant error.

13. 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).

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 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 9 November 2021