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

[2021] FCCA 2121

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ranjana v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2121

File number(s):

SYG 368 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Permanent) (Class EN) (Subclass 186) Visas – where the applicants did not have an approved nomination – whether the Tribunal was affected by bias or apprehended bias – 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 359A, 368, 476

Migration Regulations 1994 (Cth) sch 2; cls 186.223(1), 186.223(2)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

24

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Ms G O’Keefe, Sparke Helmore

ORDERS

SYG 368 of 2021

BETWEEN:

RANJANA RANJANA

First Applicant

NAVEEN KUMAR

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:	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

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”) dated 10 February 2021, affirming the decision of a delegate of the first respondent (“the delegate”) to refuse the applicants Employer Nomination (Permanent) (Class EN) (Subclass 186) Visas (“the Visas”).

   Background

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

3. On 9 June 2016, the applicants applied for the Visas.

4. On 6 July 2017, the delegate invited the applicants to comment on the want of an approved nomination.

5. On 4 August 2017, the delegate refused the grant of the Visas because the applicants did not have an approved nomination, and accordingly, did not satisfy cl 186.223(2) of sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”).

6. On 15 August 2017, the applicants applied to the Tribunal for review. On 20 January 2021, the Tribunal wrote to the applicants, pursuant to s 359A of the Act, explaining that the applicants did not have an approved nomination, and invited them to comment.

7. The Tribunal invited the applicants to attend a hearing on 23 January 2020. On that day, the applicants appeared before the Tribunal to give evidence and present arguments.

8. On 10 February 2021, the Tribunal affirmed the decision of the delegate. In circumstances where the Tribunal identified that the applicants had been sent a s 359A letter in respect of not having an approved nomination, and found that the applicants did not an approved nomination, the Tribunal found that the applicants did not satisfy cl 186.223(1) of the Regulations. Consequently, the Tribunal affirmed the decision under review.

   Before the Court

9. These proceedings were commenced on 9 March 2021 and fixed for a show cause hearing today, 18 August 2021.

10. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. The first applicant made reference to the fact that it was no fault of hers as to why she did not have an approved nomination.

11. The first applicant also suggested that the Tribunal had been biased. There is no basis for any such allegation. No evidence has been identified to support any conduct to suggest that the Tribunal did anything other than approach the review with an open mind, reasonably capable of persuasion as to the merits.

12. It was fundamental, for the first applicant to succeed, that she had an approved nomination. Without an approved nomination, she could not succeed. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The first applicant’s submissions otherwise invited impermissible merits review. Nothing said by the applicant identified an arguable case for the relief claimed.

    The Grounds

13. The Grounds in the application are as follows:

    Ground 1

    1.The Tribunal denied the applicant procedural fairness and/or failed to exercise its jurisdiction by failing to provide the applicant ample opportunity and time to respond to the matter and queries sought by the Tribunal.

    Ground 2

    2.The Tribunal erred in finding that the applicant’s visa should be refused and failed to give proper weight and consideration to the earlier documents submitted by the applicant. By doing so, the Tribunal erred jurisdictionally by failing to objectively and dully consider the evidence before it by discounting the evidence before it.

    Ground 3

    3.As procedural fairness was not accorded by the Tribunal to the applicant, the Tribunal erroneously concluded that it had to affirm the decision of the delegate, and is accordingly breach of the applicant’s right to natural justice.

    Ground 4

    4.The tribunal has accordingly breached section 338, 348, 353 and 357A of the Migration Act by failing to properly review the decision that was before it and further by its failure to act in a way that is fair and just.

    Ground 5

    5.The Tribunal has further breached section 368 of the Migration Act by its failure to provide proper reason for its decision and findings on the material question of fact on which the decision was made.

    Ground 1

14. In relation to Ground 1, contrary to the applicants’ contention, the Tribunal complied with its statutory obligations and invited the applicants to attend a hearing. The applicants were already on notice of the need for an approved nomination as a result of the delegate’s decision, and further, the Tribunal did proceed to give the applicants a letter pursuant to s 359A of the Act. In those circumstances, no arguable case of any denial of procedural fairness is apparent or raised in relation to Ground 1.

15. The applicants’ inability to obtain the approved nomination does not identify an arguable case of error by the Tribunal. The circumstances as to why the applicant could not obtain an approved nomination also do not give rise to any arguable case of error by the Tribunal. No arguable case is made out by Ground 1. 

    Ground 2

16. In relation to Ground 2, the applicants’ disagreement with the adverse finding of the Tribunal does not identify an arguable case of relevant error. The applicants’ assertions that there was a failure to objectively consider the evidence appears to be an allegation of bias which is unsupported for the reasons that the Court has already identified.

17. The Tribunal was correct to identify that the applicants had to have an approved nomination in order to succeed. No arguable case of bias or apprehended bias is identified in the material before the Court. No arguable case of an error is disclosed by Ground 2. 

    Ground 3

18. In relation to Ground 3, the applicants disagree with the affirming of the delegate’s decision. The applicants could not have succeeded before the Tribunal when they did not have an approved nomination.

19. The assertion of a breach of natural justice is without substance. The applicants were clearly on notice, as the Court has explained, as to the need for an approved nomination. No arguable case of relevant error is disclosed by Ground 3.

    Ground 4

20. In relation to Ground 4, there is no substance in the contention of the alleged breaches of the statutory provisions. The Grounds are wholly un-particularised and cannot, in those circumstances, succeed.

21. The Tribunal plainly gave reasons for the adverse findings, and the only material question before it was whether the applicants had an approved nomination. The alleged contraventions do not disclose any basis for the alleged contravention and no arguable case is raised by these Grounds, nor is this Court the place in which the applicants can seek to agitate the validity of the decision concerning the failure to approve the nomination. The applicants’ case could not succeed in the circumstances of the present case without an approved nomination.  Accordingly, no arguable case of relevant error is disclosed by Ground 4. 

    Ground 5

22. Ground 5, also, is without substance and does not identify an arguable case of relevant error. As already identified, the Tribunal provided reasons consistent with the requirements of s 368 of the Act, which identified that the applicants did not have an approved nomination. In those circumstances, no arguable case of relevant error is disclosed by Ground 5. 

23. 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 case in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

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

I certify that the preceding twenty-four (24) 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