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

[2021] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2074 

File number(s):

SYG 2080 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Subclass 186) Visas – where the applicants did not have an approved nomination – oral application for an adjournment made – oral application for adjournment refused – whether the Tribunal had an obligation to act in the best interest of the applicant – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 Federal Circuit Court Rules 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) s 359A, 476

Migration Regulations 1994 (Cth) cl 186.223

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

20

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the respondent:

Ms S Wright, Mills Oakley

ORDERS

SYG 2080 of 2020

BETWEEN:

VIPULKUMAR KANTILAL PATEL

First Applicant

PINKIBEN VIPULKUMAR PATEL

Second Applicant

HEER VIPULKUMAR PATEL

Third 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:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is refused.

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

3.The first and second applicant 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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 August 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Employer Nomination (Subclass 186) Visas (“the Visas”).

   BACKGROUND

2. The applicants are citizens of India. The second applicant is the first applicant’s spouse and the third applicant is their daughter, in respect of whom there has been a litigation guardian order made.

3. On 26 June 2017, the first applicant applied for the Visas. 

4. On 11 January 2018, the delegate found that the applicants failed to meet the criteria for the grant of the Visas because there was no approved nomination.

5. On 31 January 2018, the applicants applied to the Tribunal for a review. By a letter dated 12 March 2020, the applicants were invited to attend a hearing on 16 April 2020.

6. On 18 March 2020, there was a communication sent to the Tribunal in relation to the hearing being postponed.

7. On 14 April 2020, clarification was sought as to whether the hearing was proceeding on 16 April 2020. On the same day, the Tribunal cancelled the scheduled hearing.

8. On 6 July 2020, the Tribunal wrote to the applicant and, pursuant to s 359A of the Act, explained that there was no approved nomination in respect of the sponsor, and invited the applicants to respond.

9. The first applicant responded, and was invited to attend a hearing on 11 August 2020. On that day, the first applicant appeared before the Tribunal to give evidence and present arguments.

10. The Tribunal identified that there was no approved nomination, and that the first applicant did not meet the criteria under cl 186.223 of the Migration Regulations 1994 (Cth). On 12 August 2020, the Tribunal affirmed the decision of the delegate under review.

    BEFORE THE COURT

11. These proceedings were commenced on 3 September 2020 and were fixed for a show-cause hearing today, 16 August 2021.

12. In the course of the hearing, the first applicant indicated that he wanted an adjournment to obtain legal representation.

13. Nothing said by the first applicant satisfactorily explained why he did not have a lawyer and why he did not have an adequate opportunity to obtain one. The first applicant made reference to the COVID-19 situation and his own circumstances. The adjournment was also opposed by the first respondent.

14. The Court is not satisfied that there would be any utility in granting an adjournment. The Court is not satisfied that the first applicant would then be able to obtain representation, because if the first applicant was able to do so, he would have had representation today.

15. Further, the Court has taken into account the want of merit in the substantive application. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. For these reasons, the Court made an order dismissing the oral application for an adjournment.

    THE GROUND

16. The first applicant otherwise put on oral submissions in support of the Ground in the originating application, which is as follows:

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

    CONSIDERATION

17. The Ground misconceives the function of the Tribunal, which is to determine the correct or preferable decision. There is no obligation upon the Tribunal to act in the best interests of the applicant. In substance, this Ground invites impermissible merits review.

18. Given that the applicants did not have an approved nomination, the applicants could not succeed before the Tribunal.

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

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

I certify that the preceding twenty (20) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       6 October 2021