Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2024] FedCFamC2G 368
•26 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 368
File number: MLG 2417 of 2022 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 26 April 2024 Catchwords: MIGRATION LAW – application for reinstatement – decision of the Administrative Appeals Tribunal – Employer Nomination (Class EN) (subclass 186) visa – finding that there was no reasonable explanation for failure to attend on previous occasion – where substantive application has no reasonable prospects of success and remittal to Tribunal would be futile – where the applicant was not subject to an approved nomination – where Tribunal made the only decision available in the circumstances – application dismissed. Legislation: Migration Act 1958 (Cth), ss 359A, s359C, 360
Migration Regulations 1994 (Cth) sch 2, cl 186.223, 187.223
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.06, 13.13, 17.05
Cases cited: AIZ22 vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44
FBS18 v Minister for Home Affairs [2019] FCAFC 196
MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530
Patel v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1170
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 7 March 2024 Date of hearing: 7 March 2024 Place: Melbourne Solicitor for the Applicants: Mr I Warraich of HUK Legal Services Solicitor for the Respondents: Ms S Liddy of Sparke Helmore ORDERS
MLG 2417 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHARMESH LALLUBHAI PATEL
First Applicant
SANGEETABAHEN DHARMESH PATEL
Second Applicant
NIKUNJ DHARMESH
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
26 APRIL 2024
THE COURT ORDERS THAT:
1.The applicants’ application filed on 23 February 2024 be dismissed.
2.The first and second applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application to set aside orders made on 24 January 2024 dismissing the applicants’ substantive application for non-appearance pursuant to rule 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (‘the Rules’). The applicants thereby seek the reinstatement of their application for review of the decision of Judicial Registrar Cummings made on 12 December 2023, which summarily dismissed the applicants’ application for judicial review filed on 1 November 2022.
In the substantive judicial review application, the applicants sought a review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 September 2022, which affirmed a decision of a delegate of the Minister for Home Affairs (‘the Minister’) to refuse to grant the first applicant an Employer Nomination (Class EN) (subclass 186) visa (‘subclass 186 visa’).
Before turning to consider the reinstatement application, it is necessary to provide a brief overview of the factual and procedural background in this matter.
FACTUAL BACKGROUND
The first applicant is a citizen of India.[1] The first applicant is married to the second applicant and they have one child of the relationship, the third applicant. [2]
[1] Court book at page 2.
[2] Court book at pages 2 and 5.
Application for a subclass 186 visa on 20 March 2018
On 20 March 2018, the applicants lodged an application for a subclass 186 visa in the Temporary Residence Transition stream.[3] In his visa application, the first applicant listed ANE Australia Pty Ltd as his prospective employer, for the nominated position of ‘Market Research Analyst’.[4] The second and third applicants were included in the visa application as the first applicant’s family members.
[3] Court book at pages 1 to 15.
[4] See court book at pages 10 and 11.
Refusal of nomination on 30 April 2019
By letter dated 13 May 2019, the first applicant was advised that the nomination submitted by ANE Australia Pty Ltd listing the applicant as its nominee had been refused.[5] That letter also contained the following:
… This means that your visa application cannot be approved.
You have the option of withdrawing your application. If you wish to withdraw your application, you must advise us in writing. …
…
If you do not respond to this letter within 28 days and the application has not been withdrawn then the application will be refused. …
[5] Court book at page 63.
The first applicant did not respond to this letter or provide any further information relevant to his application as requested in the letter.
Delegate’s refusal to grant subclass 186 visa on 14 June 2019
On 14 June 2019, the delegate refused to grant the first applicant the subclass 186 visa on the basis that he did not satisfy the requirements of clause 186.233 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Migration Regulations’), as he was not the subject of an approved nomination.[6] The first applicant was notified of this outcome by letter dated 15 June 2019.[7]
[6] Court book at pages 71 to 74.
[7] Court book at pages 67 to 70.
In its decision record attached to its letter of 15 June 2019, the delegate set out the terms of clause 186.223 of the Migration Regulations, which forms the primary criteria for the granting of a subclass 186 visa. Relevantly, clause 186.223 provides that:
(1) The position to which the application relates is the position:
(a) Nominated in an application for approval that:
(i)Identifies the applicant in relation to the position; and
(ii)Is made in relation to a visa in a Temporary Residence Transition stream; and
(iii)In relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The minister has approved the nomination.
(3) The nomination has not been subsequently withdrawn.
(3A) Either:
(a)There is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)It is reasonable to disregard any adverse information known to immigration about the person who made the nomination of a person associated with that person.
(4) The position is still available to the applicant.
(5)The application for the visa is made no more than 6 months after the Minister approved the nomination.
The delegate found that the first applicant did not meet the requirements of clause 186.223(2) because the nomination by ANE Australia Pty Ltd had not been approved by the Minister.[8]
[8] Court book at pages 67 to 74.
The delegate also refused to grant a subclass 186 visa to the second and third named applicants as they did not meet the secondary visa criteria to be members of a family unit of a person who held a subclass 186 visa.[9]
[9] Court book at pages 67 to 74.
Application for review at Tribunal on 28 June 2019
On 28 June 2019, the first applicant applied to the Tribunal for review of the delegate’s decision.[10]
[10] Court book at pages 75 to 77.
By letter dated 2 September 2022, the first applicant was invited to attend a hearing before the Tribunal scheduled for 29 September 2022. The hearing was scheduled to occur by telephone.[11]
[11] Court book at pages 90 to 93.
The section 359A letter
By letter dated 7 September 2022, the Tribunal invited the applicant, pursuant to section 359A of the Migration Act 1958 (Cth) (‘the Act’) to comment on adverse information relevant to his application (‘the section 359A letter’). [12]
[12] Court book at pages 102 to 104.
Namely, the section 359A letter referred to the fact that ANE Australia Pty Ltd did not have an approved nomination under clause 186.223 of the Migration Regulations. The section 359A letter also noted that the Tribunal records indicated that ANE Australia Pty Ltd had also lodged an application for review of the decision to refuse its nomination but the Tribunal made a decision that it had no jurisdiction to deal with the application on the basis that the employer company had been deregistered on 16 January 2022. Consequently, the applicant was invited to comment on the fact that as at the date of that letter, there was no current approved nomination of the applicant by ANE Australia Pty Ltd and the nomination refusal was no longer a matter on review to the Tribunal.
The applicant was invited to comment on this information in writing by 21 September 2022. The Tribunal put the applicant on notice that a failure to respond by 21 September 2022 would result in the cancellation of the hearing that had been scheduled for 29 September 2022.
Furthermore, the section 359A letter notified the applicant that it was a mandatory requirement of clause 186.223 of the Migration Regulations that he be the subject of an approved nomination by his Australian employer.[13] The Tribunal put the applicant on notice that in the absence of an approved nomination, the Tribunal may affirm the decision under review.
[13] Court book at pages 102 to 104.
The Tribunal also noted that following legislative amendments to the subclass 186 and 187 visa categories, a nomination by a new employer would not satisfy clause 186.223 of the Migration Regulations in respect of the applicant’s application as his application had been lodged prior to 18 March 2018.
The applicant filed a change of contact details form dated 21 September 2022.[14] The applicant did not otherwise respond to the section 359A letter or address the matters raised therein in his correspondence.
[14] Court book at pages 105 to 106.
Consequently, on 26 September 2022, the Tribunal informed the applicant by letter that the hearing initially scheduled for 29 September 2022 had been cancelled.[15] The letter indicated that the applicant had lost his right to a hearing as he had not provided a response to the Tribunal’s section 359A letter. In circumstances where the deadline for providing a response had passed, the Tribunal confirmed that it would proceed to make a decision on the information currently available to it. The Tribunal nonetheless invited the applicant to provide any information or submissions in writing to the Tribunal by 29 September 2023.
[15] Court book at page 108.
On 30 September 2022, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a subclass 186 visa.[16]
[16] Court book at pages 112 to 118.
TRIBUNAL DECISION
The Tribunal’s decision record dated 30 September 2022 is set out at pages 113 to 119 of the court book.
The Tribunal set out the background to the matter at paragraphs [1] to [11] of its decision record, relating to the section 359A letter, the applicant’s failure to respond to the section 359A letter by the deadline, and the relevant criteria for the granting of a subclass 186 visa.
At paragraph [12] the Tribunal noted that it had received a change of contact details form on 21 September 2022 and at paragraph [13], it stated that it was satisfied that the section 359A letter had been sent to the then correct nominated email address for the applicant.
At paragraphs [15] to [18] of its decision record, the Tribunal considered whether the change of contact details form could properly be considered a response to the section 359A letter such that the applicant did not lose his right to a hearing. After considering case law relating to this issue, the Tribunal concluded at paragraph [17] that did not consider the notification of a change of authorised recipient to constitute a response to the section 359A letter. Therefore, at paragraph [18], the Tribunal found that the applicant had not responded to the section 359A letter and therefore section 359C of the Act applied, and pursuant to section 360(3), the applicant was not entitled to appear before the Tribunal.[17]
[17] Court book at page 117.
Relevantly, section 359C(1) provides that:
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on review without taking any further action to obtain the information.
Section 360 also provides that:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
…
(c) Subsection 359C(1) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
At paragraph [21] of its decision record, the Tribunal outlined that it was proceeding to make its decision without taking further steps to obtain information regarding the section 359A letter, in circumstances where no comment or response had been provided despite the request being made and the granting of a further opportunity for the applicant to provide relevant information to the Tribunal.
At paragraph [25] of its decision record, the Tribunal noted that the nomination of the sponsor, ANE Australia Pty Ltd, had been refused by a delegate on 30 April 2019, and a differently constituted Tribunal decided on 1 April 2022 that it had no jurisdiction to review that decision as the company had been de-registered in January of 2022.
The Tribunal ultimately affirmed the decision of the delegate, finding that the applicant was unable to satisfy the requirements of clause 186.223 of the Migration Regulations as he was not the subject of an approved nomination.[18] The Tribunal also found that the applicant could not satisfy the requirements of clause 186.223 by reference to a new sponsor.[19]
[18] Court book at page 118.
[19] Court book at page 118.
By extension, the Tribunal also affirmed the decision to not grant the second and third applicants a subclass 186 visa on the basis that they did not satisfy the secondary visa criteria, which required them to be members of the family unit of the person who holds a subclass 186 visa.[20]
PROCEEDINGS IN THIS COURT
[20] Tribunal decision record dated 30 September 2022 at paragraph [31].
Application for judicial review on 1 November 2022
On 1 November 2022, the applicant filed his substantive application for judicial review of the Tribunal’s decision of 30 September 2022. The application raised three grounds of review, namely:[21]
1.The Administrative Appeals Tribunal made a jurisdictional error whilst making decision on application.
2.The Administrative Appeals Tribunal failed to accord procedural fairness and thereby erred in the exercise of its jurisdiction to review the decision of the delegate.
3.The Administrative Appeals Tribunal failed to consider all circumstances of the case and to observe the principles of natural justice.
[21] Application filed on 1 November 2022.
By its amended response filed on 7 November 2022, the Minister sought summary dismissal of the applicant’s substantive application pursuant to rule 13.13 of the Rules.[22]
[22] Amended Response filed on 7 November 2022.
On 7 November 2023, the applicant’s solicitor Mr Imran Warraich filed a Notice of Address for Service indicating that he had been appointed as the applicant’s solicitor.
On 8 November 2023, orders were made by Judicial Registrar Cummings adjourning the hearing of the application for summary dismissal to 8 December 2023, by Microsoft Teams.[23]
[23] Orders of Judicial Registrar Cummings dated 8 November 2023.
Relevantly, these orders provided for the Minister to file an amended outline of written submissions in support of the application for summary dismissal, as well as any further evidence intended to be relied upon.
By these orders, the applicant was also ordered to file any amended application for judicial review with submissions to this end, and any further evidence upon which he intended to rely. The first applicant was also appointed litigation guardian for the third applicant.
The hearing proceeded on 8 December 2023 by Microsoft Teams. On this occasion, Judicial Registrar Cummings reserved judgment on the application for summary dismissal.[24]
[24] Orders of Judicial Registrar Cummings dated 8 December 2023.
Decision of Judicial Registrar Cummings on 12 December 2023
On 12 December 2023, Judicial Registrar Cummings summarily dismissed the applicant’s application for judicial review pursuant to rule 13.13(a) of the Rules and ordered that the first and second applicants pay the Minister’s costs of the proceedings fixed in the sum of $4,189.38.[25]
[25] Orders of Judicial Registrar Cummings dated 12 December 2023.
Application for review of a Registrar’s decision on 28 December 2023
On 3 January 2024, the applicant lodged an application for review of Judicial Registrar Cumming’s decision dated 12 December 2023.[26] That review application was listed for hearing before me on 24 January 2024 at 10:00am.
[26] Application for review filed on 3 January 2024.
Hearing on 24 January 2024
At the hearing on 24 January 2024, there was no appearance by or on behalf of the applicant when the matter was called before me at 10:00am. The applicant and his representative were called out of court at 10:03am. There was no response to the call by or on behalf of the applicant.
I subsequently stood the matter down for approximately 15 minutes to allow the Minister’s solicitor to make attempts to contact the applicant’s solicitor and ascertain his whereabouts.
At 10:13am, the solicitor for the Minister sent an email to the applicant’s representative. The email stated:[27]
Hi Imran
…
Your client’s application is currently before the Court and the applicant nor you or any other representative is present. The Court has stood down the matter down to approximately 10:20am for attempts to be made to ascertain your whereabouts.
I would be grateful for an urgent response. In this regard and further to our correspondence from our firm to you on 15 January 2024, we intend to apply for dismissal of this matter in the absence of any appearance.
Regards
…
[27] Affidavit of Jack Mangos affirmed and filed on 5 March 2024, Annexure ‘JM1’.
By approximately 10:20am, there was no response to the attempts of the Minister’s solicitor to contact the applicant’s solicitor. The applicant and his representative were once more called outside of the court at 10:21am. There was no response to the call by or on behalf of the applicant.
On resumption of the hearing, I made orders dismissing the application for non-appearance pursuant to rule 13.06(1)(c) of the Rules, and for the first and second applicants to pay the first respondent’s costs fixed in the sum of $3,000.[28] The hearing concluded at 10:25am.
[28] Orders of Deputy Chief Judge Mercuri dated 24 January 2024.
At 11:24am on the same day, the applicant’s representative responded to the email from the solicitor for the Minister. The email stated:[29]
dear colleague
i am not able to attend this hearing due to sickness. i request you to consent for adjournment.
regards
imran
[29] Affidavit of Jack Mangos affirmed and filed on 5 March 2024, Annexure ‘JM2’.
By the time that this correspondence was received, the hearing had concluded and I had made orders dismissing the application for non-appearance. Accordingly, the request made by the applicant’s representative for an adjournment was unable to be considered.
Application for reinstatement filed on 23 February 2024
On 23 February 2024, the applicant’s solicitor filed an interlocutory application seeking re-instatement of the substantive application pursuant to rule 17.05(2)(a) of the Rules, accompanied by an affidavit in support.
The applicant’s Application in a Proceeding filed on 23 February 2024 sought the following orders:
1.In a proceeding MLG2417/2022, Order 1 of the Orders made on 24th January 2023 be vacated and set aside Pursuant to rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
2.In a proceeding MLG2417/2022, Order 2 of the Orders made on 24th January 2024 be vacated and set aside Pursuant to rule 17.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth)
3.The Substantive application for judicial review of Migration Decision filed by the Applicants in a proceeding MLG2417/2022 on 01 November be reinstated.
In the accompanying affidavit of Mr Imran Warraich filed on 23 February 2024, the applicant’s representative relevantly said:
3.I do affirm that I couldn’t attend the hearing on 24th January 2024 due to serious sickness and ailment.
The balance of the affidavit referred to the email correspondence which preceded between the applicant’s representative and the solicitor for the Minister on 24 January 2024. At paragraph [5], the applicant’s representative also referred to the accompanying reinstatement application made on 23 February 2024.
Hearing of the reinstatement application on 7 March 2024
The applicant’s representative stated that he was unable to attend the hearing before me on 24 January 2024 due to his sickness. He did not make any other claims or provide any evidence in relation to the stated reason for his non-attendance. In particular, no medical evidence was provided.
As to the substantive application and its prospects of success, the applicant’s representative submitted that the applicant was prejudiced in the original hearing before the Tribunal as he was unrepresented on that occasion.
The Minister opposed the applicant’s reinstatement application, submitting that the reason provided by the applicant’s representative is insufficient to explain his failure to attend the hearing on 24 January 2024.
The Minister asserted that, in circumstances where the applicant’s representative could not attend the hearing due to sickness, the appropriate course of action would have been to contact the court and request an adjournment, with medical evidence to substantiate his claim that he was too unwell to attend the hearing.
The Minister conceded that there would be no prejudice to the Minister should the application be reinstated, however maintained that this would not be reason alone to justify the reinstatement. The Minister also submitted that the substantive application had no reasonable prospects of success.
REINSTATEMENT PRINCIPLES
Rule 17.05(2)(a) of the Rules relevantly provides the court with the power to vary or set aside an order made in the absence of a party.
The principles regarding an application such as this to reinstate a proceeding dismissed for non-appearance are relatively well settled. The power is discretionary, and it requires the Court to determine whether it is in the interests of the administration of justice for the reinstatement application to be granted.
The discretion to reinstate an application is a broad one, but the following factors have consistently been referred to as relevant to determining whether to exercise that discretion in any given case:
(a)whether there is a reasonable excuse for the party’s absence from the hearing;
(b)whether, and if so what, prejudice would flow to the other party from the reinstatement; and
(c)whether the party has a reasonably arguable prospect of success on the substantive application.[30]
[30] MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 (‘MZYEZ’) at [7].
As noted in MZYEZ, even where there is a reasonable explanation for the delay, the court may not grant the request for reinstatement if there is little or no prospect of the application succeeding on the substantive case.[31]
[31] MZYEZ at [7].
The Full Court of the Federal Court in FBS18 v Minister for Home Affairs [2019] FCAFC 196 at paragraph [55] noted that the three factors identified above are no more than guidelines on the exercise of the discretion in rule 17.05(2)(a) of the Rules, and not a checklist per se.
I note that the applicant’s representative has not provided sufficient evidence to support his absence from court on 24 January 2024. Moreover, no explanation has been given as to why the first applicant was not present on that occasion. Whilst the applicant’s representative maintained that he was unwell when the matter was listed for hearing, there is no medical evidence to support this proposition. Moreover, he was able to send an email at 11:24 am on the morning of the hearing. There is no explanation given as to why the applicant’s representative was not able to send an email prior to the time scheduled for the hearing seeking an adjournment. This factor weighs against granting the reinstatement application.
As stated, the Minister properly concedes that there is no prejudice to them if the matter were reinstated. Of course, the absence of prejudice does not of itself warrant the granting of the reinstatement application. Overall, the absence of prejudice to the Minister is a neutral factor in determining whether and if so how to exercise the court’s discretion.
Ultimately, however, for the following reasons I find that it is not in the interests of the administration of justice to grant the applicant’s application on the basis that he does not have reasonable prospects of success if the matter were to proceed and therefore it would be futile to allow the application.
As is evident from the background set out above, this application is an application to reinstate the review application from the decision of a Judicial Registrar. Rule 21.2 of the Rules provides for the review of an exercise of Registrar’s powers. Relevantly, rule 21.04(1) provides that the review of an exercise of power by a Registrar must proceed by way of a hearing de novo. Therefore, if the applicant’s reinstatement application were granted, the court would be required to consider the Minister’s summary dismissal application afresh.
At the heart of the Minister’s summary dismissal application is the proposition that the applicant’s substantive application for judicial review has no reasonable prospects of success. In AIZ22 vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 44 at paragraphs [36] to [37], I summarised the principles which apply to a summary dismissal application. Relevantly, it is not necessary for the court to be satisfied that the claim will fail. Moreover, the discretion to summarily dismiss must be exercised with caution given that it is an order made at a preliminary stage of the proceedings and without the benefit of developed argument and evidence. The issue is whether there is a real question of law or fact which should be decided at trial.
Leaving aside the grounds of review themselves and the concession made by the Minister that the Tribunal erred as the applicant had not provided express written authorisation for the Tribunal to communicate with a person authorised by the applicant to receive documents in connection with the review, pursuant to section 379G of the Act, I accept the Minister’s submission that there would be no utility in remitting this matter to the Tribunal even if there were an error which amounted to a jurisdictional error.
If the matter were to be remitted to the Tribunal, the Tribunal would again need to consider whether the applicant satisfied the requirements of cl 186.233 of Schedule 2 of the Migration Regulations. In circumstances where the nomination was refused and that refusal remains undisturbed, the applicant does not and cannot meet the requirements of cl 186.233, such that any error on the part of the Tribunal could not have an impact on the ultimate decision the Tribunal would make.
As stated above, the sponsor’s nomination of the applicant was rejected by the Department of Home Affairs. A differently constituted Tribunal found it had no jurisdiction to review the nomination refusal.[32]
[32] Court book at pages 103 and 115.
Moreover, as noted by the Tribunal in its reasons for decision, the criteria for the granting of a visa could not be satisfied on the basis of a different nomination to that specified in the application for the visa. In addition, the observations and findings in Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 (‘Singh’) at paragraphs [88] to [89] equally apply to this case. In Singh, Justice Mortimer (as her Honour then was) with whom both Justices Jagot and Bromberg agreed, said:
88… In my opinion the criterion imposes a single requirement, which is either fulfilled or not fulfilled at the time of decision. At the time of the delegate’s decision the employer nomination from Harrico had been refused by the Minister. The words in cl 187.233 “position nominated in an application for approval that seeks to meet the requirements of” reg 5.19 refer to a factual event: that is, the words refer to an employer nomination which was in fact made, and about which the visa applicant made the required declaration in the visa application. The “position” referred to is a particular job with a particular employer that exists at a particular point in time, and in a particular set of factual circumstances. The point in time is the point at which the employer nomination is submitted for approval under reg 5.19(1). It is to that act that the visa applicant’s declaration in the visa application is directed.
89The structure of reg 5.19 contemplates … that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied. Again, this contemplates an assessment by the Minister at a particular point in time. Thereafter, the only variation to this assessment contemplated by the scheme is review by (now) the Administrative Appeals Tribunal. On merits review there is an opportunity for an employer to adduce new or further material in order to satisfy the Tribunal that the nomination should be approved. It is in this way that the “time of decision” criterion can operate on merits review, as described by the Full Court in Singh at [28], referring to Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 at [24]–[27]. This is the mechanism the scheme contemplates to alter an unsuccessful nomination. It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.
90… The scheme intends it to be a “once off” process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).
While the above passage relates to clause 187.233 of the Migration Regulations, this provision is replicated in clause 186.233, the subject of the current application. The observations in Singh equally apply to the present matter.
Consequently, in circumstances where the initial nomination was not approved (and no successful review of that refusal was granted), there was, and remains, only one possible outcome for the applicant’s visa application, namely that it must be refused.
In those circumstances, it would be futile to refer the matter back to the Tribunal (even if an error could be identified in its reasons). For this reason alone, the summary dismissal application would succeed on a de novo review if the applicant’s application for review were allowed.
I further note that the applicant’s representative was on notice of the submission that it would be futile to remit this application to the Tribunal for the reasons discussed above. In the applicant’s written submissions filed 6 December 2023, the applicant’s written submissions did not explain why he said that it would not be futile. Rather the submissions simply make a bald assertion to the contrary.
Therefore, and notwithstanding the paucity of evidence explaining the applicant or his representative’s failure to attend court on 24 January 2024 and the lack of prejudice to the Minister, I am not satisfied that it is in the interests of the administration of justice for the applicant’s reinstatement application to be granted in circumstances where, even if he were able to establish that there was jurisdictional error in the manner in which the Tribunal considered his claim, the application ultimately is futile as the Tribunal could not find in his favour in circumstances where the substantive application filed by the applicant does not have reasonable prospects of success.
In this proceeding, the sponsor nominated in relation to the visa application was refused by the delegate. The sponsor was subsequently deregistered on 16 January 2022. The sponsor has now been de-registered for almost two and a half years. The solicitors for the Minister have made inquiries to confirm that the sponsor currently remains de-registered.[33] Therefore, the Tribunal does not have jurisdiction concerning the nomination application.
[33] Affidavit of Samantha Liddy affirmed and filed on 13 November 2023, Annexure ‘SL1’.
CONCLUSION
For each of these reasons, I am satisfied that it is not in the interests of the administration of justice to order the reinstatement of the applicant’s application. I therefore make the orders as set out at the commencement of these written reasons for judgement.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 26 April 2024
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