Patel v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 880

Federal Circuit and Family Court of Australia

(DIVISION 2)

Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 880

File number(s):

SYG 3103 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

28 October 2022

Catchwords:

 MIGRATION – Administrative Appeals Tribunal – Subclass 186 visa refusal – no approved nomination – whether jurisdictional error is made out – no jurisdictional error made out – application is dismissed.

Legislation:

 Migration Act 1958 (Cth) ss 65

Migration Regulations 1994 (Cth) Schedule 2 Part 186 cl 186.223 (2)

Cases cited:

 Kaur v Minister for Immigration and Border Protection [2018] FCA 779

Nathanson v Minister for Home Affairs [2002] HCA 26

Division:

Division 2 General Federal Law

Number of paragraphs:

23

Date of last submission/s:

24 October 2022

Date of hearing:

24 October 2022

Place:

Sydney

Counsel for the Applicants:

The First Applicant appeared in person.

Solicitor for the Respondents:

Ms Wong appeared on behalf of the First Respondent.

ORDERS

SYG 3103 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

PRADEEP PRAVIN PATEL

First Applicant

MITTALBEN PRADEEP PATEL

Second Applicant

ARUSHI PATEL (and another named in the Schedule)

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:	28 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 is dismissed.

3.The First Applicant is to pay the First Respondents costs, fixed in the amount of $5400.00.

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. On 23 May 2017, the applicants applied for Employer Nomination (Permanent) (Class EN) visas, under s 65 of the Migration Act 1958 (Cth) (“the Act”). At that time, the Class EN, contained one subclass, which was the Subclass 186 (Employer Nomination Scheme).

2. On 1 September 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the applicant Employer Nomination (Permanent) (Class EN) visas, because the applicant did not meet cl 186. 223 (2) of Schedule 2 of the Regulations, as the first applicant was not the subject of an approved nomination.

3. In a decision dated 31 October 2019, the Administrative Appeals Tribunal (“the Tribunal”) affirmed the delegate’s decision not to grant the applicants their Employer Nomination (Permanent) (Class EN) visas.

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

   ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. The decision record begins from paragraph 1 to 8 by outlining the procedural background of the applicants’ visa application.

6. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Any other members of the family unit who are applicants for the visa, only need to satisfy the secondary criteria. Applicants who seek to satisfy the primary criteria, must meet the “Common Criteria”, as well as the criteria of one of three alternative visa streams, which are: the Temporary Residence Transition stream, the Direct Entry stream or the Labour Agreement Stream.

7. In this case, the first applicant was seeking the visa in the Temporary Resident Transition stream, to work in the nominated position of a Café or Restaurant Manager.

8. At paragraph 9 of the decision record, the Tribunal notes that the issue in this case, is whether the first applicant is the subject of an approved employer nomination.

9. Paragraphs 12 to 15 of the Tribunal decision record relates to the findings and reasons relating to whether the applicant meets all of the requirements. At paragraph 12, the Tribunal noted that on 31 October 2019, a decision was made by the Tribunal (differently constituted), to affirm a decision of a delegate not to approve the nomination of the applicant’s sponsor employer, AUSBD Pty Ltd

10. At paragraph 14 of the Tribunal decision record, it found that cl 186.223 (2) of the Regulations was not met.

11. At paragraph 16 of the decision record, the Tribunal affirmed the delegates decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    GROUNDS OF JUDICIAL REVIEW

12. The applicants rely on two grounds of judicial review. The grounds of judicial review are contained within an Initiating Application filed with the Court on 27 November 2019. The grounds are as follows verbatim:

    Ground One:

    The Tribunal, based on department of Border Protection 'DIBP' now Department of Home Affairs 'Do HA' decision, denied the Applicant appeal that he has fulfilled the employer nomination by his employer and meet the visa application of Employer Nomination (Temporary Resident Transition Stream) (Class EN) visa hence misconstrued the requirement by the DoHA.

    Particulars

    1.1The Tribunal misconstrued the requirement by the DoHA decision to refuse the visa under clause 186.223 in Schedule 2 of the migration Regulations

    1.2 The Tribunal failed to consider the Applicant's employer has met all employer nomination requirement and denied further evidence to take into consideration during hearing on 14 October 2019 and after hearing hence denied procedural fairness at the time of tribunal hearing

    1.3 Tribunal member clearly indicated, during hearing that he would wait for further information on the reopening of the restaurant and provided Employer further time till end of December for Restaurant to re-open

    1.4 Tribunal member clearly mentioned that has been recorded during hearing of  his matter. Unfortunately, without waiting for the further information, tribunal has decided the matter hence denied procedural fairness to provide further information and prove the requirement of nomination has met by the employer

    1.5 Employer complied substantially all obligations of the sponsorship to nominate applicant under employer nomination and temporary residence transition stream visa hence Tribunal failed to consider the employer's need to sponsor genuinely in Australia permanently.

    Ground Two

    The Tribunal committed jurisdictional error when took into account irrelevant considerations by DoHA and constructively failed to consider the requirement of Nomination application hence misconstrued the criteria or applied wrong test regarding the grant of the visa application of subclass 186.

    Particulars

    1.1 The Tribunal failed to consider that applicant has met all other relevant requirement to grant of employer nomination – temporary residence transition visa subclass 186.

    1.2      Tribunal failed to take into the consideration

    1.2.1    The nature of the criteria for the grant;

    1.2.2    Significance of the requirement met;

    1.2.3    Role of the Department;

    1.2.4 At the time of the refusal if the Employer met all applicable criteria to grant;

    THE APPLICANTS SUBMISSIONS

13. The first applicant appeared before the Court unrepresented.  The first applicant did not request the assistance of an Interpreter. The Court was satisfied that the first applicant was able to effectively participate in the hearing.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s submissions had been served upon him.

14. 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 process by which the hearing would be undertaken.

15. Notwithstanding Court orders, no written submissions or other material was supplied by the first applicant in support of his case. The first applicant told the Court the issue was the employer sponsor was refused as it was making a loss. The applicant tried to start a separate business to overcome the issue but his application was refused. The Court explained that any employer sponsored nomination was tied to the particular employer named in the visa application. The problem could not be cured by a new business offering to nominate. A new visa application by the first applicant needed to be made linked to the new sponsorship.

    CONSIDERATION

16. Ground one asserts that the Tribunal failed to consider that the sponsor had “met all employer nomination requirement” and denied “further evidence to take into consideration during the hearing on 14 October 2019 and after hearing”.  The first respondent submitted that to the extent that the first aspect of ground one is directed to the Tribunal’s decision dated 31 October 2019 which affirmed the delegates decision not to approve the nomination lodged by the sponsor, it is incapable of demonstrating any error in the Tribunal decision that is the subject of these proceedings.

17. It was submitted that there was no evidence of any judicial review proceedings filed by the sponsor.  Therefore the allegation that the applicant was denied the opportunity to provide further evidence cannot be sustained on a fair reading of the Tribunal’s decision record.

18. The Court is satisfied there was no error in the Tribunal as alleged by the applicants. This application for judicial review relies solely on the circumstances as they apply to the first applicant, being the primary applicant in this matter. There was no requirement by the Tribunal to consider what occurred in relation to the employer nomination other than note that the Tribunal had affirmed the delegate’s decision not to approve the employer sponsor. There being no judicial review in respect of that decision, it was appropriate for the Tribunal to consider the visa application of the applicants. In this matter, at the time of the decision the applicants did not have an approved employer sponsor and therefore could not meet the requirements of cl 186.223 (2) of the Regulations.  Accordingly, the Tribunal had no option other than to affirm the decision under review.  Ground one has no merit.

19. Ground two is similarly misconceived and difficult to understand. The first applicant alleges that the Tribunal took into account irrelevant considerations by failing to consider that the applicant had met “all other relevant requirement to grant of employer nomination”. As pointed out by the first respondent, the requirements of cl 186.223 of the Regulations are cumulative.  If an applicant is unable to meet any one of the relevant criteria contained within the clause, then the entirety of the clause cannot be met.  The Court is satisfied that there was nothing illogical, irrational or legally unreasonable in the decision of the Tribunal based on the evidence before it.  Ground two has no merit

20. The Court also notes the submission of the first respondent that in the circumstances of this particular matter, it would be futile to remit the matter to the Tribunal for further reconsideration even if jurisdictional error existed (which is not conceded).  The approved nomination must be the nomination identified in the visa application.  In this case it was refused.  The applicant is unable to substitute it with a new nomination: (see; Item 114C (3)(d) of the Regulations and Kaur v Minister for Immigration and Border Protection [2018] FCA 779 at [25]). The Court accepts this submission.

21. Further, no jurisdictional error is established by the failure of the Tribunal to ask the applicant to comment pursuant to s 359A(1) of the Act on information that might form the reason or part of the reason for making the decision: (see; Nathanson v Minister for Home Affairs [2002] HCA 26) . Nothing the applicant could have said would have made a difference.

22. As the applicant was unrepresented the Court carefully perused the Tribunal decision record. The Court was unable to ascertain any unarticulated jurisdictional error.

    CONCLUSION

23. As the application has no merit, it must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       28 October2022

SCHEDULE OF PARTIES

SYG 3103 of 2019
Applicants
Fourth Applicant:	AARAV PATEL