Patel v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 615

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 615

File number(s):

SYG 558 of 2021

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

8 August 2022 

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visas – whether the Tribunal incorrectly applied the Regulations – whether the Tribunal failed to consider a relevant information – whether the Tribunal denied procedural fairness.

Legislation:

Migration Act 1958 (Cth) ss

Migration Regulations 1994 (Cth)

Cases cited:

Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413

Division:

Division 2 General Federal Law

Number of paragraphs:

21

Date of last submission/s:

1 August 2022

Date of hearing:

1 August 2022

Place:

Parramatta

Counsel for the Applicants:

The Applicant appeared in person.

Solicitor for the First Respondent:

Ms Harradine, Mills Oakley

ORDERS

SYG 558 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

SANKETKUMAR NATVARBHAI PATEL

First Applicant

RIDDHIBEN SANKETKUMAR PATEL

Second Applicant

KIYAN SANKETKUMAR 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:	8 AUGUST 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 is dismissed.

3.The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $6100.00.

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 first, second and third applicants (“the applicants”) are citizens of India, and are a family unit.

2. On 28 February 2018 the first applicants applied for a Regional Employer Nomination (Permanent) (Class RN) visas (“Regional Employer visa”), sponsored by Mahal Holdings Pty Ltd (“the sponsor”). The second and third applicants relied upon the application of the first applicant. On 6 August 2019 a delegate of the Minister for Home Affairs (as it was then) (“the delegate”) refused to grant the applicants their Regional Employer visa.

3. On 26 August 2019 the applicants sought merit review of the delegate’s decision at the Administrative Appeals Tribunal (“the Tribunal”). On 5 March 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants their Regional Employer visa.

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

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The Tribunal decision is short, consisting of 17 paragraphs over 3 pages. The Tribunal decision begins by outlining the procedural history of the applicants’ visa applications.

6. At paragraphs 7 of the decision record, the Tribunal states that on 17 February 2021 the applicants were invited pursuant to s 359A of the Migration Act 1958 (Cth) (“the Act”), through their migration agent, to comment on information that may have formed part of the decision. That information included that the sponsor’s application for approval of the nominated position was refused by the delegate and this decision was later affirmed by the Tribunal, differently constituted. The s 359A of the Act invitation indicated that the information was relevant because the Tribunal may have found that the requirements of cl 187.233 to Schedule 2 of the Migration Regulations (Cth) (“the Regulations”) would not be met.

7. At paragraph 7 of the decision record, the Tribunal states that the s 359A invitation required the applicants to respond by 3 March 2021, otherwise the applicants could lose their right to appear before the Tribunal to give evidence and present arguments.

8. At paragraph 8 of the decision record, the Tribunal notes that the applicants had not provided comments within the prescribed time outlined on the s 359A invitation and that no extension of time had been granted. The Tribunal further notes that s 359C of the Act applied and as such, pursuant to s 360(3) of the Act, the applicants were not entitled to appear before the Tribunal. The Tribunal found that the effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: (see; Hasran v MIAC [2010] FCAFC 40). The Tribunal found that it was appropriate to continue with the decision without taking further steps to obtain further comments from the applicants.

9. At paragraph 10 of the decision record, the Tribunal states that the issue is whether the first applicant meets the requirements of cl 187.233 to Schedule 2 of the Regulations. Paragraphs 11 and 12 of the Tribunal’s decision outline the requirements of cl 187.233 to Schedule 2 of the Regulations. Of significance, this section required that the position to which the visa application relates be the subject of an application for approval of a nomination in the Direct Entry stream.

10. At paragraph 13 of the decision record, the Tribunal found that the nominator had lodged an application for approval of the nomination, however this application was refused by the Department for Home Affairs and review of the Department’s decision to the Tribunal was unsuccessful.

11. At paragraph 14 of the decision record, the Tribunal found that there was no approved nomination by which the first applicant was a nominee. Accordingly, the first applicant did not satisfy the requirements of cl 187.233 to Schedule 2 of the Regulations.

12. At paragraph 16 of the decision record, the Tribunal found that as the first applicant did not satisfy the requirements for the grant of the Regional Employer visa, the second and third applicants did not satisfy the requirements of cl 18.311 to Schedule 2 of the Regulations and the decision in respect to their visas had to be affirmed.

    GROUNDS OF JUDICIAL REVIEW

13. The grounds of judicial review are contained within an Initiating Application filed with the Court on 1 April 2021. The grounds are reproduced as they appear in the application verbatim:

    •The Administrative Appeals Tribunal did not apply criteria for a Subclass 187 visa as set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) and made legal error.

    •That the Administrative Appeals Tribunal in the present case, did not consider the first named applicant (the applicant) visa in the Direct Entry stream in the nominated position of Retail Manager (ANZSCO 142111) and made error.

    •That the Administrative Appeals Tribunal did not provide opportunity to have face to face interview to clarify my position and made legal error.

    THE APPLICANTS’ SUBMISSIONS

14. The first applicant appeared before the Court unrepresented. The first applicant was assisted by an Interpreter.

15. Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s written submissions had been interpreted to him. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review.

16. Notwithstanding Court orders, no submissions or other material was supplied by the applicants in support of their matter. The first applicant told the Court that he was requesting justice so that he could move forward. At the conclusion of the first respondent’s oral submissions, the first applicant again repeated that he was looking for the Court to provide him with justice. The Court explained that it was required to apply the law.

    CONSIDERATION

17. Grounds one and two allege that the Tribunal “did not apply” the criteria for the grant of a Subclass 187 visa, and did not consider the application in the Direct Entry stream for the nominated position of Retail Manager. This assertion is factually incorrect. The Tribunal made specific reference to the nominated position of Retail Manager at paragraph 14 of its decision. Further, at paragraphs 11 and 15 of its decision, the Tribunal considers the relevant criteria for the grant of the visa sought but concluded that the applicant cannot meet them, as he is not the subject of an “approved nomination”, and thus, the requirements of cl 187.233 of the Regulations are not met. Grounds one and two have no merit.

18. Ground three is a complaint that the applicants did not have the opportunity for a “face to face” interview. However, the applicants failed to respond to the s 359A of the Act invitation. As a result, this enlivened the provisions of ss 359C(2), 360(2)(c) and 360(3) of the Act which removed the entitlement of the applicants to a face to face hearing. This is set out in paragraph 8 of the Tribunals decision record, in which the Tribunal correctly found that the applicants “are not entitled to appear before the Tribunal”. No jurisdictional error arises as a result. Ground three has no merit.

19. The first respondent further submitted that even if there was some jurisdictional error (which is not admitted), it would be futile to remit the matter back to the Tribunal as any other Tribunal considering whether the matter would be required to come to the same decision to affirm the delegates decision: (see; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413 at [27]-[29]). In any event, the sponsoring company was de-registered on 7 August 2020. The Court accepts this submission.

    CONCLUSION

20. As the applicants are unrepresented, the Court has perused the Tribunal decision record, but is unable to ascertain any unarticulated jurisdictional error. The application must be dismissed. None of the grounds of judicial review have any merit.

21. As the first applicant has been unsuccessful, the second and third applicants review application must also be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       8 August 2022