Matcha v Minister for Immigration

[2020] FCCA 2814

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATCHA v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2814

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Permanent) (Class EN) visa – where the applicant was found not to have an approved nomination – whether the Tribunal failed to consider the applicant’s claim – whether the applicant had satisfied the criteria for the grant of the visa – whether employer’s failure to notify applicant of the rejected nomination constituted a jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), sch.2

Federal Circuit Court Rules 2001 (Cth) r.44.12

Applicant: SNIGDHA MATCHA

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 32 of 2020

Judgment of: Judge Street

Hearing date: 14 October 2020

Date of Last Submission: 14 October 2020

Delivered at: Sydney

Delivered on: 14 October 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Respondents: Mr A Downie, MinterEllison, via Microsoft Teams

ORDERS

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.

DATE OF ORDER: 14 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 32 of 2020

SNIGDHA MATCHA

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 made on 13 December 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa (“Employer Nomination visa”). 

2. The applicant is a citizen of India and applied for the Employer Nomination visa on 28 June, 2017. 

3. On 4 September 2018, the Delegate notified the applicant that the nomination application submitted, listing her as the nominee, had been refused, and provided the applicant an opportunity to respond. The applicant did not respond and on 4 October 2018, the Delegate refused the grant of the Employer Nomination visa because the applicant did not satisfy cl 186.223 of sch 2 to the Migration Regulations 1994 (Cth).

4. On 23 October 2018, the applicant sought review of the Delegate’s refusal. On 22 November 2019, the Tribunal sent the applicant an invitation to attend a hearing on 13 December 2019, to give evidence and present arguments. The Tribunal also sent the applicant a s 359A letter inviting the applicant to comment or respond to the information that she did not have an approved nomination. On 6 December 2019, the applicant responded but did not identify that she now had an approved nomination. 

5. The applicant appeared before the Tribunal on 13 December 2019 to give evidence and present arguments and on 13 December 2019, the Tribunal affirmed the decision of the Delegate, having found that there was no approved nomination, which was a mandatory requirement under cl 186.223.

Before the Court

1. The applicant applied for review to this Court by commencing proceedings on 7 January 2020. On 13 February 2020, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. The matter was fixed today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). 

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that she understood the explanation given by the Court. 

4. The applicant orally indicated that she told the Tribunal what she wanted to say and that she thought she had compassionate circumstances. The Court explained to the applicant that compassionate circumstances were not part of the criteria that the Tribunal could apply and that she had to meet the mandatory criteria of having an approved nomination.

5. The applicant, in substance, otherwise put submissions inviting this Court to engage in merits review. This Court has no power to review the merits. Nothing said by the applicant identified any arguable case of jurisdictional error. 

The grounds

1. The grounds in the application are as follows: 

   1.APPLICANTS CLAIMS THAT THE ADMINISTRATIVE APPEALS TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.

   2.APPLICANT CLAIMS THAT HE SATISFY ALL REQUIREMENTS BUT THEY DENIED VISA.

   3.APPLICANTS ALSO CLAIM THAT HIS EMPLOYER DID NOT TELL HER ANYTHING ABOUT WHY HER NOMINATION REJECTED.

   4.APPLICANT SATISFY REQUIREMENTS OF SUBCLASS 186 VISA.

Ground 1

1. In relation to ground one, for the reasons already given, compassionate circumstances or compassionate reasons were not a matter that the Tribunal had to consider where the applicant did not have an approved nomination. 

2. No arguable case of relevant error is made out by ground one.

Ground 2

1. In relation to ground two, the applicant’s assertion of satisfying the requirements of the Employer Nomination visa is, in substance, a disagreement with the adverse finding and does not identify any arguable case of jurisdictional error. 

Ground 3

1. In relation to ground three, the applicant complains about her employer not having informed her about the nomination rejection. It is taken that the Tribunal informed the applicant of that rejection, as had the Delegate. That approved nomination was a mandatory criteria for the grant of the visa. 

2. No arguable case of relevant error is disclosed by ground three.

Ground 4

1. In relation to ground four, the applicant again asserts satisfying the requirements. This reflects nothing more than a disagreement with the adverse decision and does not identify any arguable case of relevant error. 

2. The Court is not satisfied that the application has raised an arguable case for the relief claimed. 

3. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.  

I certify that the preceding nineteen (19) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 16 November 2020