Pasham v Minister for Immigration

[2020] FCCA 640

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASHAM & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 640

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Class EN) (Subclass 186) visa – whether the Tribunal misapplied the relevant law – no arguable case for the relief sought – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476
Federal Circuit Court Rules 2001 (Cth), r.44.12

First Applicant: SHIRISHA PASHAM

Second Applicant: SURENDER REDDY PASHAM

Third Applicant: SAHASRA LAXMI REDDY PASHAM

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 871 of 2019

Judgment of: Judge Street

Hearing date: 20 March 2020

Date of Last Submission: 20 March 2020

Delivered at: Sydney

Delivered on: 20 March 2020

REPRESENTATION

The First Applicant appeared in person.

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The first applicant and the second applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 20 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 871 of 2019

SHIRISHA PASHAM

First Applicant

SURENDER REDDY PASHAM

Second Applicant

SAHASRA LAXMI REDDY PASHAM

Third 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 (“the Tribunal”) made on 8 March 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Employer Nomination (Class EN) (Subclass 186) visas (“Employer Nomination visas”).

2. It is apparent that at the time of the application the first applicant did not have an approved nomination by the employer, which was a mandatory and essential requirement in order for the applicants to be granted Employer Nomination visas.

3. These proceedings were commenced on 8 April 2019 and fixed today for a show cause hearing.

4. At the commencement of the show cause hearing, the Court explained to the first applicant the nature of a show cause hearing and the first applicant confirmed that she understood the nature of the show cause hearing as explained by the Court.

5. The first applicant put no submissions from the bar table.

6. The ground in the application is as follows:

   1. Administrative Appeals Tribunal had not acted in the best interest of the applicant ( procedural fairness issue ) as mentioned in affidavit attached here with .

7. Ground 1 does not identify any arguable case of jurisdictional error by the Tribunal. It is apparent that the first applicant did not have an approved nomination from the employer. On the face of the Tribunal’s reasons, the Tribunal correctly applied the relevant law and there was no other outcome available in circumstances where the first applicant had not met the mandatory criteria. No arguable case of jurisdictional error by the Tribunal has been disclosed.

8. The Court is satisfied that the application has not raised an arguable case for the relief sought. The Court is satisfied 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). Accordingly, the application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding eight (8) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 20 March 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  23 April 2020