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

[2021] FCCA 2082

FEDERAL CIRCUIT COURT OF AUSTRALIA

Pangli v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2082

File number(s):

SYG 593 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination (Permanent) (Class RN) Visa – where the applicant did not have an approved nomination before the Tribunal – where the applicant’s submissions invited 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 187.233, 187.233(3)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

16

Date of hearing:

17 August 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the respondent:

Ms J Strugnell, Minter Ellison

ORDERS

SYG 593 of 2021

BETWEEN:

JASWANT PANGLI

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:	17 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 applicant 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 15 March 2021, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) Visa (“the Visa”).

   BACKGROUND

2. The applicant is a citizen of India, and applied for the Visa on 1 March 2017. 

3. On 26 September 2018, the delegate refused the grant of the Visa because the applicant was not the subject of an approved nomination, and accordingly, did not meet the criteria under cl 187.233 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 10 October 2018, the applicant applied to the Tribunal for review.

5. By letter dated 12 February 2021, the applicant was invited to a hearing before the Tribunal. On 18 February 2021, the applicant was sent a letter under s 359A of the Act, inviting the applicant to comment on information that he did not have an approved nomination.

6. On 9 March 2021, the applicant appeared before the Tribunal to give evidence and present arguments.

7. On 21 January 2021, the Tribunal affirmed the decision of the delegate. The Tribunal found that the applicant did not have an approved nomination and, accordingly, could not meet clause 187.233(3) of sch 2 to the Regulations, and affirmed the decision under review. 

   BEFORE THE COURT

8. These proceedings were commenced on 13 April 2021, and were fixed for a show cause hearing today, 17 August 2021, under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”).

9. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant identified that he had been working very hard and was a law abiding citizen, and wanted to explain why it was that he was unable to obtain an approved nomination. The applicant explained that it was beyond his control to obtain the approved nomination.

10. The Court understands what the applicant has said however, unfortunately, whatever the reasons why the applicant did not have an approved nomination, it was an essential criteria for the applicant to succeed before the Tribunal. 

11. The Tribunal clearly raised the want of an approved nomination with the applicant in accordance with s 359A of the Act. In circumstances where the applicant did not have an approved nomination, further evidence explaining why he could not obtain the approved nomination would not be relevant and would not assist the applicant.

12. The applicant otherwise asked the Court to do him justice in relation to the Visa. The Court has no power to revisit the merits, nor can the Court grant relief on compassionate or discretionary grounds. Nothing said by the applicant identified an arguable case for the relief claimed.

    THE GROUNDS

13. The grounds in the originating application are as follows:

    Ground 1

    1.jurisdictional error and lacked jurisdiction

    Ground 2

    2.Error in interpretation of legislation

    Ground 3

    3.Natural Justice.

    Consideration

14. Without particulars, none of the Grounds are capable of identifying an arguable case for the relief claimed. In circumstances where the applicant did not have an approved nomination at the time of hearing, the applicant could not succeed before the Tribunal.

15. 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 Rules.

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

I certify that the preceding sixteen (16) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       6 October 2021