Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2086

FEDERAL CIRCUIT COURT OF AUSTRALIA

Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2086  

File number(s):

SYG 3102 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – whether the Tribunal denied the applicants procedural fairness in the review – whether the Tribunal took into account irrelevant considerations – no arguable case for relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Migration Act 1958 (Cth) s 476

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Regulations 1994 (Cth) cl 186.233

Number of paragraphs:

15

Date of hearing:

17 August 2021

Place: 

Sydney

Solicitor for the applicant:

In person

Solicitor for the first respondent:

Ms J Strugnell, Minter Ellison

ORDERS

SYG 3102 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HIRENKUMAR PUNAMBHAI PATEL
First applicant

MANISHABEN HIRENKUMAR PATEL
Second applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 AUGUST 2021

THE COURT ORDERS THAT:

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

2.The applicants pay the first respondent’s costs fixed in the amount of $3,737.00

REASONS FOR JUDGMENT

JUDGE STREET:

Introduction

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 31 October 2019, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant’s an Employer Nomination (Permanent) (Class EN) visa (“the Visa”).

   Background

2. The applicants are citizens of India and the second applicant is the partner of the first applicant. 

3. On 6 July 2018, the delegate refused the grant of the Visa because the first applicant did not have an approved nomination, and accordingly, did not meet the criteria under cl 186.233 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. On 24 July 2018, the applicants applied for review.  On 14 October 2019, the applicants appeared before the Tribunal to give evidence and present arguments.

5. On 31 October 2019, the Tribunal affirmed the decision under review. The Tribunal found that the first applicant was not the subject of an approved nomination, which was essential criteria under cl 186.223 of the Regulations.  On 27 November 2019 the applicants commenced proceedings in this Court.

   Before the Court

6. The proceedings were fixed for a show cause hearing today.  The Court explained to the applicants the nature of the show-cause hearing and the applicants confirmed that they understood the explanation given by the Court. 

7. The applicants submitted that the Tribunal should have adjourned the proceedings so that they could meet the criteria.  It is not apparent from the Tribunal’s reasons that there was any request for an adjournment.  Further, the first applicant was on notice of not having an approved nomination as a result of the delegate’s decision.  In those circumstances, the applicant’s contention that the Tribunal should have provided further time is without merit, and in substance, is inviting this Court to engage in impermissible merits review.

8. Nothing said by the applicants identified any arguable  case of relevant error by the Tribunal. 

   THE GROUNDS

9. The Grounds in the application are as follows:  

   Ground 1

   1 The Tribunal, based on department of Border Protection 'DIBP' now Department of Home Affairs 'DoHA' 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

   1.1 The Tribunal misconstrued the requirement by the DoHA decision to refuse the visa under clause 186.233 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 this 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 2

   2 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;

   Consideration

10. Insofar as the first Ground takes issue with the Tribunal’s refusal of the approved nomination, that is not the subject of proceedings by this Court.  The applicants could not succeed unless the first applicant had an approved nomination.  No arguable case of relevant error is disclosed by Ground 1.

11. In relation to Ground 2, there is no irrelevant statutory consideration identified that the Tribunal took into account. The Tribunal correctly identified the relevant law, and found that the first applicant did not meet the essential criteria under cl 186.233 of the Regulations.  No arguable case of relevant error is disclosed by Ground 2.

12. Further, the Court accepts the first respondent’s submissions that it would be futile to grant relief because the applicant did not have an approved nomination. 

13. Accordingly, no arguable case of relevant error is disclosed by the originating application.

14. The Court is not satisfied that the application has raised an arguable case for the relief claimed. 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).

15. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       9 November 2021