Patel v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 913

Federal Circuit and Family Court of Australia

(DIVISION 2)

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 913

File number(s):

SYG 1884 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

4 October 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) visa – whether applicants denied procedural fairness – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) s 359A

Migration Regulations 1994 (Cth)

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Division:

Division 2 General Federal Law

Number of paragraphs:

26

Date of last submission/s:

27 October 2022

Date of hearing:

27 October 2022

Place:

Parramatta

Counsel for the Applicants:

The Applicant appeared in person.

Solicitor for the Respondents:

Mr Jeyakummar appeared on behalf of the First Respondent.

ORDERS

SYG 1884 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DIPABEN YOGESHKUMAR PATEL

First Applicant

YOGESHKUMAR RAMLAL PATEL

Second Applicant

ARYA YOGESHKUMAR PATEL

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	4 October 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application be dismissed.

3.The First Applicant to pay the First Respondent’s costs fixed in the sum of $4000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

Introduction

1. The applicants are citizens of India. The first applicant applied for an Employer Nomination (permanent) (Class EN) visa (“Employer Nomination”) on 24 September 2018. The second and third applicants were joined as secondary applicants to the visa application. On 2 October 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Employer Nomination visas.

2. On 18 October 2019, the applicants applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review of the delegate’s decision. The Tribunal affirmed the decision of the delegate not to grant the applicants’ Employer Nomination visa on 22 September 2021.

3. The applicants now seek judicial review of the Tribunal’s decision in this Court.

   The administrative appeals tribunal decision

4. Paragraphs 1 to 5 provide the procedural history of the applicants’ visa applications. At paragraph 7, the Tribunal notes that the applicants were represented by a registered migration agent.

5. At paragraph 8, the Tribunal notes that it wrote to the applicants on 26 August 2021, pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”) inviting them to comment on or respond to information which the Tribunal considered would be the reason or part of the reason for it affirming the delegate’s decision. That information was that on 17 May 2021, the Tribunal (differently constituted) determined that it did not have jurisdiction to review the decision of the delegate to refuse the nomination made by AJ Contractors Australia Pty Ltd (“the Nominator”) in respect of the applicant, as the nominating company had been deregistered.

6. At paragraph 9, the Tribunal records that it advised the applicants that its own records and that of the Department of Immigration indicated that the first applicant was not the subject of an approved nomination by a standard business sponsor. The Tribunal explained that if it relied on this information, it could find that the position specified in the visa application was not the subject of an approved nomination and that the applicant did not satisfy the requirements for the grant of the Employer Nomination visa.

7. The Tribunal gave the applicants until 9 September 2021 to provide any comments or response to the s 358A invitation. On 31 August 2021, the applicants provided a written response to the s 359A invitation which included the following information:

   •On 16 February 2016 the applicant’s subclass 457 visa was approved for the position of Building Associate 312112.

   •After completing two years of work for the nominator, the applicant applied for the subclass 186 visa.

   •The applicant has worked and fully met all the requirements for the subclass 457 and 186 visas, including submitting all required documents.

   •The decision to refuse the nomination was fully out of his sight and control.

   •The applicant has worked, paid income tax and abided by his visa conditions while living in Australia.

8. On 13 August 2021, the Tribunal advised the applicants that it had considered the material before it but was unable to make a favourable decision and invited the applicants to give oral evidence and present arguments at a hearing on 15 September 2021. On 15 September 2021, the applicants advised the Tribunal that they did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear.

9. At paragraph 17, the Tribunal states that the issue with the matter was whether the first applicant met the requirements of cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). At paragraphs 18 and 19, the Tribunal outlines the requirements of cl 186.223, including that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant.

10. At paragraph 20, the Tribunal was satisfied that on 26 August 2019 the application for approval of the nominated position for the first applicant made by the Nominator was refused by the delegate. The Nominator sought a review of the decision, but on 17 May 2021 the Tribunal found that it did not have jurisdiction to review the delegate’s decision, meaning that the Nominator’s application for the nominated position had not been approved.

11. At paragraph 21, the Tribunal states that there was no evidence to suggest that the first applicant was the subject of any other approved nomination. At paragraph 22, the Tribunal was not satisfied that the first applicant met the requirements of cl 186.223 of Schedule 2 to the Regulations.

12. At paragraph 23, the Tribunal note that the first applicant had only sought to satisfy the criteria for a Subclass 185 visa in the Temporary Residence Transition stream and that no claims had been made in respect of other visa streams.. As the requirements for the Temporary Residence Transition stream had not been met, the decision under review had to be affirmed.

13. At paragraph 24, the Tribunal considered that, given it found that the first applicant did not satisfy the primary criteria for the grant of a Subclass 186 visa, the second and third applicants applications should not have been reconsidered as they were not members of a family unit of a person who had satisfied the primary criteria for the grant of the visa.

    Grounds of judicial review

14. In the applicants’ Initiating Application filed with the Court on 12 October 2021, the following is stated as the single ground of judicial review:

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

15. In an Affidavit signed 11 October 2021, which was not sworn or affirmed, the first applicant repeats the above ground and provides further particulars that are summarised as follows:

    •The first applicant has tried all avenues to upkeep the conditions of their current visa;

    •The problem occurred because of their employer;

    •The first applicant has lost their job many times and they experience stress;

    •The first applicant has family issues and this is still present;

    •The first applicants requests consideration of compelling and compassionate circumstances;

    •The first applicants requests acknowledgement of the current global circumstances being COVID-19;

    •The first applicant was a victim of procedural unfairness as the Tribunal had made an error in their decision. It was not fair for the Tribunal to make the decision it did and they were required to look at all necessary aspects.

    The applicants’ submissions

16. The first applicant appeared before the Court on behalf of herself, her husband and child. She was unrepresented.  She was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to her.  The Court also ensured the first applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wished to.

17. At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court she had complied with all the conditions of her visa. She had been misled by her employer. She asked for some more time to enable her son to complete year 12 at the end of 2023.

    CONSIDERATION

18. Consideration In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

19. The sole ground of judicial review, such as it is, asserts that the Tribunal failed to consider the applicant’s compelling circumstances.  This ground is misconceived and if anything, invites the Court to undertake impermissible merits review: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].

20. As pointed out by the first respondent, none of these matters were relevant to the consideration of this matter. The Tribunal’s procedural fairness obligations in conducting reviews of this type are codified in Division 5 of Part 5 of the Act.  There is no material before the Court to indicate that the Tribunal did not comply in any way with these obligations.

21. The Tribunal quite properly brought to the attention of the applicants, material that would be the reason or part of the reason for affirming the delegate’s decision.  The applicants replied.  The applicants were invited to attend the hearing to give oral evidence and present arguments.  However they advised the Tribunal they did not wish to do so and consented to the Tribunal making a decision on the material it currently had before it. 

22. The applicants sought an Employer Sponsored visa.  The application by the employer was refused.   Subsequently, the nominating company was deregistered.  In these circumstances the Tribunal affirmed the decision not to approve the employer as a nominator.

23. Given that there was no approved employer nominator, the Tribunal had no choice but to affirm the decision under review, indeed it was the only course open to it. It would be futile to remit the matter back to the Tribunal as in this case, given there is no approved employer nominator, the Tribunal would be obliged to make the same decision

24. None of the matters relied upon by the applicant point to any jurisdictional error on the part of the Tribunal. As the applicant is unrepresented, the Court has perused the Tribunal decision record but is unable to ascertain any unarticulated error.

25. The application before the Court has no merit.

    conclusion

26. The application is dismissed with costs

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       4 October 2022