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

[2021] FCCA 2064

FEDERAL CIRCUIT COURT OF AUSTRALIA

Momen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2064

File number(s):

SYG 1785 of 2019

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’ oral submissions invited impermissible merits review – where the applicants’ originating application did not raise any grounds for 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), s 359A

Migrations Regulations 1994 (Cth), sch 2; cl 186.223

Federal Circuit Court Rules 2001 (Cth), r 44.12

Number of paragraphs:

9

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Ms A Zinn, Mills Oakley

ORDERS

SYG 1785 of 2019

BETWEEN:

S M ASHRAFUL MOMEN

First Applicant

MAHMUDA RAHMAN RUNA

Second 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 applicants pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

1. This is a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 June 2019 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 Bangladesh and the second applicant is his wife, included as a member of the family unit. On 15 February 2017, the applicants applied for the Visas.

3. On 30 November 2017, the delegate refused the application for the Visas as the first applicant did not have an approved nomination as required by cl 186.223 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

4. On 20 December 2017, the applicants applied to the Tribunal for review. On 26 March 2019, the applicants were sent a letter pursuant to s 359A of the Migration Act 1958 (Cth), explaining that the related nomination had been refused. The first applicant responded, and attended a hearing before the Tribunal on 11 June 2019. The Tribunal found that the first applicant did not have an approved nomination, and did not meet the criteria under cl 186.223 of the Regulations. Consequently, the Tribunal affirmed the decision of the delegate under review.

   Before the Court

5. These proceedings were commenced on 16 July 2019. At the commencement of the hearing, the Court explained the nature of the show cause hearing to the first applicant. The first applicant made reference to his circumstances all being the fault of his employer. Unfortunately, the Court does not have power to decide the matter on compassionate or discretionary grounds. 

6. In the absence of an approved nomination, the applicants could not succeed before the Tribunal.  The first applicant’s oral submissions, in summary, invited impermissible merits review.

7. The applicants sought review of the Tribunal’s decision by this Court, yet failed to raise or submit any grounds for review. The originating application fails to identify any ground of alleged error by the Tribunal.  By orders made on 8 August 2019 the applicants were given an opportunity to file and serve an amended application, affidavit evidence and submissions. The applicants did not do so.

8. 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).

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

I certify that the preceding nine (9) 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: 8 October 2021