Pooja v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2112
•18 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pooja v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2112
File number(s): SYG 3532 of 2017 Judgment of: JUDGE STREET Date of judgment: 18 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Permanent) (Class EN) Visas – where the applicants did not have an approved nomination – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) Legislation: Migration Act 1958 (Cth) ss 362B, 476
Migration Regulations 1994 (Cth) cl 186.233(3)
Federal Circuit Court Rules 2001 (Cth) r 44.12
Number of paragraphs: 20 Date of hearing: 18 August 2018 Place: Sydney Solicitor for the applicant: First applicant, in person Solicitor for the first respondent: Mr A Sharma, HWL Ebsworth ORDERS
SYG 3532 of 2017 BETWEEN: POOJA POOJA
First Applicant
ILIESA JASWAL
Second Applicant
VIKAS KUMAR JASWAL
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:
18 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 first and second applicants pay the first respondent’s costs fixed in the amount of $3,737.00.
REASONS FOR JUDGMENT
JUDGE STREET:
Introduction
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 30 October 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Employer Nomination (Permanent) (Class EN) Visas (“the Visas”).
Background
The first applicant is the spouse of the second applicant, and the third applicant is a child in respect of whom there has been a litigation guardian order made.
The applicants applied for the Visas on 27 June 2015.
On 8 February 2016, the delegate refused the grant of the Visas because the applicants did not have an approved nomination, as required under cl 186.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”).
On 10 February 2016, the applicants applied to the Tribunal for review. The Tribunal received communications from the applicants, and eventually an adjourned hearing date was fixed for 27 September 2017.
On that hearing date, the applicants did not appear before the Tribunal. The Tribunal decided to proceed to make a decision, pursuant to s 362B of the Act.
The Tribunal identified that the nominated position was not the subject of an approval. The Tribunal was satisfied that the applicants did not meet the criteria under cl 186.233(3) of the Regulations because there was no evidence of an approved nomination. Accordingly, the Tribunal affirmed the decision of the delegate under review.
Before the Court
These proceedings were commenced on 15 November 2017 and fixed for a show cause hearing today, 18 August 2021.
At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. The first applicant informed the Court that they had been misled by their agent in relation to the want of the approved nomination. Sadly, the circumstances or thought, if any, involved in the absence of an approved nomination, is not a matter that provides any arguable case of relevant error by the Tribunal.
In that regard, the reasons why the first applicant did not have an approved nomination were not relevant before the Tribunal. Unless the applicant had an approved nomination, the applicant could not succeed before the Tribunal. Given the adjournments that had been earlier granted, the Tribunal’s decision to proceed to determine the matter cannot be said to lack an evident and intelligible justification.
The Grounds
The Grounds in the originating application are as follows:
Ground 1
1.I would like to appeal the AAT decision of DIBP File Number/s: BCC2015/1842680, AAT Case number-1601505.
Ground 2
2.The grounds of my appeal are;
a.jurisdictional error,
b.miscarriage of justice,
c.the lacking of the AAT to take into account complete set of facts.
Ground 3
3.I had applied for a Employer Nomination Visa on 27/06/2015. Further information was requested from Immigration in regards to my circumstances to support my application. My visa was refused.
Ground 4
4.I then applied to the Tribunal to appeal the decision. The Tribunal affirmed the decision of the delegate.
Ground 5
5.I strongly feel that I should have deserved a fairer judgement as I have satisfied all the requirements for the grant of Visa that was denied. This is why I believe a miscarriage of justice has taken place.
Ground 6
6.I also attempted to provide evidence of the compelling and compassionate circumstances that evolved due to this matter. I have been affected by psychological and mental illness with the ongoing stress and anxiety of this matter, where I had done nothing wrong. As such, I have developed depression and have been seeing a doctor regarding my illness. Further to this, I have been taking medication to assist with my mental state. Thus, I feel jurisdictional error has occurred within this respect as the relevant material of my compelling and compassionate circumstances were ignored.
Ground 7
7.Jurisdictional error also encompasses situations where there has been a failure to take matters into account. It was not acknowledged at all that I had been a diligent law abiding citizen for several years prior to this refusal.
Consideration
Ground 1 does not identify an arguable error. It is a bare recital of desire and case reference.
Ground 2, without particulars, is incapable of identifying any arguable error. The Tribunal correctly identified the relevant law. In circumstances where the first applicant did not have an approved nomination, the Tribunal was not required to delve into the reasons why there was not an approved nomination. No arguable case of relevant error is disclosed by Ground 2.
In relation to Ground 3, this, in substance, identifies the background but does not articulate any arguable error in the conduct of the review by the Tribunal.
Ground 4, again, simply identifies historical matters and does not identify an arguable case of error.
Ground 5 identifies a disagreement with a decision in circumstances where the first applicant did not have an approved nomination, the applicant could not succeed. The applicant was also given an opportunity to attend a hearing and had the benefit of adjournments. In the circumstances of the adjournments and the notification of the amended hearing date, it was reasonable for the Tribunal to proceed to determine the matter under the statutory provisions. No arguable case of relevant error is disclosed by Ground 5.
In relation to Ground 6, compelling and compassionate circumstances were not a relevant criteria before the Tribunal. The Tribunal had no power to determine the matter on compassionate or discretionary grounds. If the first applicant did not have an approved nomination before the Tribunal, the applicant could not succeed. No arguable case of relevant error is disclosed by Ground 6.
In relation to Ground 7, there is no mandatory relevant consideration that has been identified that the Tribunal failed to take into account. For the reasons already given, the Tribunal did not have to delve into the reasons why the first applicant did not have an approved nomination. Any fault of the agent or otherwise does not identify an arguable case for the relief claimed. The fact that the applicant has been a law abiding citizen also simply invites impermissible merits review. This Court also has no power to determine the matter on compassionate or discretionary grounds. No arguable case of relevant error is disclosed by Ground 7.
The Court is not satisfied that the originating 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).
Accordingly, the application is dismissed under r 44.12 of the 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 18 August 2021 and the parties were sent a sealed copy of the Court’s orders.
Associate:
Dated: 6 October 2021
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