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

[2021] FCCA 2122

FEDERAL CIRCUIT COURT OF AUSTRALIA

Manchanda v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2122

File number(s):

SYG 416 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Permanent) (Class EN) (Subclass 186) Visas – where the applicants did not have an approved nomination before the Tribunal – where the applicants submissions invite 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; cls 186.223, 186.223(2)

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

19

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Ms G O’Keefe, Sparke Helmore

ORDERS

SYG 416 of 2021

BETWEEN:

AMANDEEP MANCHANDA

First Applicant

MANISH MANCHANDA

Second Applicant

JUBEN MANCHANDA (and another 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 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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 February 2021, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Employer Nomination (Permanent) (Class EN) (Subclass 186) Visas (“the Visas”). 

   Background

2. The applicants are citizens of India, and applied for the Visas on 21 June 2017. The first applicant is the wife of the second applicant, and the third and fourth applicants are their children in respect of whom there has been a litigation guardian order made.

3. On 6 February 2018, the delegate invited the applicants to comment on the fact that they did not have an approved nomination. On 9 March 2018, 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(2) of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 27 March 2018, the applicants applied for review to the Tribunal. On 20 January 2021, the Tribunal wrote to the applicants, pursuant to s 359A of the Act, giving the applicants the opportunity to comment on the fact that they did not have an approved nomination. On 23 January 2020, the applicants attended a hearing before the Tribunal, after being invited to do so on 2 January 2020, to give evidence and present arguments.

5. On 10 February 2021, the Tribunal affirmed the decision of the delegate under review. The Tribunal found that the applicants did not have an approved nomination and, accordingly, did not meet the criteria under cl 186.223 of the Regulations.

   Before the Court

6. These proceedings were commenced on 16 March 2021 and were fixed for a show cause hearing today, 18 August 2021. At the commencement of the hearing, the Court explained to the first applicant the nature of the show cause hearing.

7. The first applicant made reference to the fact that she had worked hard and had been a law-abiding citizen and paid her taxes. The first applicant also submitted that the absence of an approved nomination was completely outside her control.

8. The Court accepts that it was outside the control of the applicants that they did not have an approved nomination. Sadly, that does not give rise to any arguable case of any relevant error by the Tribunal. The circumstances as to why there was not an approved nomination were not ones the Tribunal had to determine. If the applicants did not have an approved nomination, they could not succeed before the Tribunal.

9. The first applicant also invited the Court to take into account the applicants’ circumstances, their desire to remain in Australia and the interests of the first applicant’s children. This Court has no power to determine the matter on compassionate or discretionary grounds, nor could the Tribunal. Nothing said by the applicant identified any arguable case of relevant error. In substance, the applicant’s submissions invited impermissible merits review.

   The Grounds

10. The grounds in the applicant are as follows:

    On 18th January 2021 , the Administrative Appeals Tribunal affirmed the Department of Home Affairs’ decision to refuse my employer nomination under Subclass 186 from my employer, Shashi Hair & Beauty Salon . The decision of the Tribunal is affected by Jurisdictional errors for the reasons set out in the grounds of my application as below :

    Ground 1

    1.The Tribunal didn’t place much weight to my sponsor’s arguments and the substantial amount of evidence to support my nomination . I sincerely believe that I provided ample evidence to prove that the business was financially capable of paying its employees including myself .

    Ground 2

    2.My sponsor, Ms Shashi Grover attended two hearings in which the Tribunal failed to provide the details of its inability to accept her assertion . No consideration was given to annual financial reports , employee payslips , PAYG summaries , nominee’s Notice of assessments, superannuation statements , accountant’s letter and other relevant documents to substantiate my sponsor’s claims .

    Ground 3

    3.The Tribunal’s opinion that the documents provided hold little or no weight completely contradicts the information available from the documents mentioned above.

    Ground 4

    4.The decision by the delegate and its affirmation by the Tribunal will have a catastrophic effect on me , my family and the nominating business as my employer relies heavily on my professional services for the smooth and efficient functioning of my business on a daily basis.

    Ground 5

    5.The Tribunal made a Jurisdictional error by forming an opinion that I will not be employed in the business for the next two years and placed no weight on the fact that I have already been employed by the nominating business for over five years and continued to be employed during the COVID-19 pandemic , which arguably was the toughest period for my employers .

    Ground 6

    6.The Tribunal also placed no weight on the fact that the Department of Home Affairs recently approved a nomination from the same business where the nominating business provided similar or lesser documents to prove their financial viability . It is proof of the fact that the decision making process by the Department is inconsistent and therefore leads to another jurisdictional error .

    Ground 7

    7.The Tribunal also did not take into account the business history and the impact of the nomination refusal on both the nominee and the sponsoring business. Since my nomination was refused , the Tribunal just recently affirmed the decision by the Departmet of Home Affairs to refuse my visa application for the same visa . I am a hard working individual and have helped build this business with years of hard work and dedication . Needless to say that , the refusal of my nomination and the visa application by the Department and its further affirmation by the Tribunal will have a devastating effect on my family and our sponsor .

    Ground 1

11. In relation to Ground 1, the first applicant misunderstands that it was essential, for the applicants to succeed, that she had an approved nomination. However hard she had been working or contributing as an employee does not identify a basis upon which the Tribunal could find that she met the criteria for the grant of the Visas. No arguable case of relevant error is disclosed by Ground 1.

    Ground 2

12. In relation to Ground 2, the first applicant seeks to explain the circumstances relating to the absence of the approved nomination. That was not a relevant consideration for the Tribunal. Where the first applicant did not have an approved nomination, the applicants could not succeed. Even though it was not the applicants’ fault that there was no approved nomination, that does not identify any arguable case of relevant error by the Tribunal. No arguable case of relevant error is disclosed by Ground 2.

    Ground 3

13. In relation to Ground 3, the first applicant seeks to refer to the documents in respect of her contribution and work. None of those documents were capable of meeting the criteria which the applicant had to meet. Accordingly, they were not ones to which the Tribunal had to refer. Where the first applicant did not have an approved nomination, the applicants could not succeed. No arguable case of relevant error is disclosed by Ground 3.

    Ground 4

14. In relation to Ground 4, this, in substance, identifies the impact of the decision on the first applicant and her family, and does not identify any arguable error by the Tribunal. The Tribunal did not have the power to determine the matter on compassionate or discretionary grounds, and nor does this Court. No arguable case of relevant error is disclosed by Ground 4.

    Ground 5

15. In relation to Ground 5, this, again, reflects nothing more than a disagreement with the adverse finding by the Tribunal. It does not identify any jurisdictional error, but refers to the circumstances of the applicants and invites impermissible merits review. No arguable case of relevant error is disclosed by Ground 5.

    Ground 6

16. In relation to Ground 6, this, again, appears to misunderstand that it was not necessary for the Tribunal to determine whether or not the decision not to approve the nomination was the subject of any error. It was for the applicants to establish that they had an approved nomination. If the applicants did not have an approved nomination, they could not succeed. In those circumstances, there is no substance in the assertion of a jurisdictional error or proof of a fact that it was inconsistent. Ground 6 does nothing more than identify a request for impermissible merits review. No jurisdictional error is made out by Ground 6.

    Ground 7

17. In relation to Ground 7, this, again, seeks to address the history of the matter, and invites impermissible merits review. No jurisdictional error is made out by Ground 7.

18. The Court is not satisfied that the originating 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).

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

I certify that the preceding nineteen (19) 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: 14 October 2021

SCHEDULE OF PARTIES

SYG 416 of 2021
Applicants
Fourth Applicant:	MANYA MANCHANDA