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

[2021] FCCA 2052

FEDERAL CIRCUIT COURT OF AUSTRALIA

Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2052 

File number(s):

SYG 2734 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal - application for a Regional Employer Nomination, Subclass 187 Visa – visa requirements under the Migration Regulations 1994 (Cth) sch 2 – whether the applicant had an approved nomination – applicant made submissions inviting impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12

Legislation:

Federal Circuit Court Rules 2001 (Cth) r 44.12

Migration Act1958 (Cth) ss 359, 476

Migration Regulations 1994 (Cth) sch 2, cl 187.223

Number of paragraphs:

16

Date of hearing:

16 August 2021

Place:

Sydney

Solicitors for the applicants:

In person

Solicitors for the respondent:

Ms S Roberts, Mills Oakley

ORDERS

SYG 2734 of 2019

BETWEEN:

JIMISH RAMESHCHANDRA PATEL

First Applicant

HIRAL JIMISH PATEL
Second Applicant

HENIL JIMISH PATEL
Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL 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 application is dismissed under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

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

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”). The application is in respect of an Administrative Appeals Tribunal (“the Tribunal”) decision made on 3 October 2019, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant’s Regional Employer Nomination Subclass 187 Visas (“the Visas”). 

2. The first applicant is a citizen of India, the second applicant is his wife, and the third applicant is their son who has been made the subject of a litigation guardian order. On 3 June 2019, the delegate found that the first applicant did not meet the criteria for the grant of the Visa because there was no approved nomination as required under cl 187.223 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

3. On 11 June 2019, the applicants filed an application for review. On 18 September 2019, the Tribunal sent the applicants an invitation to comment letter, pursuant to s 359 of the Act, which provided particulars that the sponsor had withdrawn their nomination, and invited the applicant’s response. On 2 October 2019, the applicants appeared at a hearing before the Tribunal to give evidence and to present arguments. On 3 October 2019, the Tribunal found that the applicants did not have an approved nomination and accordingly, that they did not meet the criteria under cl 187.223 of sch 2 of the Regulations. The Tribunal therefore affirmed the decision under review.

   BEFORE THE COURT

4. These proceedings were commenced on 22 October 2019 and were fixed for a show cause hearing today, 16 August 2021.

5. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. 

6. The first applicant identified that he had made contributions to society in Australia and spoke of the circumstances of his son, his family and the studies he had pursued. In substance, the first applicant’s submissions invited the Court to determine the matter on compassionate or discretionary grounds. The Court has no power to do so.

7. Nothing said by the first applicant identified any arguable case of relevant error being raised by the grounds in the application.

   THE GROUNDS

8. The grounds of the application are as follows:

   Ground 1

   1.APPLICANTS CLAIMS THAT THE ADMINISTRATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.

   Ground 2

   2.APPLICANT CLAIMS THAT THE TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER MERIT OF APPLICATION, AND UNLAWFULLY THEY RULED OUT THE CASE AND NOT GRANT HIM VISA.

   Ground 3

   3.THE MAIN ISSUE IS WHETHER ANY APPLICATION FOR VISA WAS ACCOMPANIED BY AN APPROVED NOMINATION?

   HOW WITHOUT CHECKING THE STATUS OF NOMINATION THE DEPARTMENT GRANTED VISA?

   THIS IS ISSUE OF PUBLIC INTEREST BECAUSE HUNDREDS OF INNOCENT SKILLED PERSON ARE VICTIM OF THIS FRAUDULENT ACTIVITIES IN AUSTRALIA.

   GROUND 1

9. The first Ground erroneously assumes that the Tribunal had some power to determine the matter on compassionate grounds. The Tribunal did not have any such power in circumstances where the first applicant did not have an approved nomination. 

10. No arguable case of relevant error was raised by Ground 1.

    GROUND 2

11. Ground 2, in substance, reflects disagreement with the decision of the Tribunal and does not identify any arguable case of relevant error. The Tribunal correctly identifies the relevant law, and in the absence of an approved nomination, the first applicant could not succeed.

12. No arguable case of relevant error was raised by Ground 2. 

    GROUND 3

13. In relation to Ground 3, this again seeks to cavil with the adverse finding that there was no approved nomination. Ground 3 fails to identify an arguable case of relevant error. 

14. On 4 August 2021, the first applicant also put on submissions which sought to identify the assiduous nature of the first applicant and his personal circumstances. Sadly, nothing in the applicant’s written submissions identify any arguable case of relevant error by the Tribunal in the conduct of the review or in its reasons. Those submissions, in substance, invited impermissible merits review.

15. 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.

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

I certify that the preceding sixteen (16) paragraphs are a true copy of the 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 September 2021