Sareen v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 956
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sareen v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 956
File number(s): MLG 2554 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 187 visa – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) s 476,
Migration Regulations 1994 (Cth) cl 187.223 of Schedule 2
Cases cited: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 10 November 2022 Date of hearing: 10 November 2022 Place: Parramatta Solicitor for the Applicant: In person Solicitor for the Respondents: Mr Daly – Mills Oakley ORDERS
MLG 2554 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DHEERAJ SAREEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 November 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship, and Multicultural Affairs”.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5000.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
Introduction
The applicant is a citizen of India. The applicant has been present in Australia since 2007. On 1 July 2016 the applicant applied for a Regional Employer Nomination (Permanent) (Class RN) visa (‘Employer Nomination visa’). A delegate of the Minister for Immigration refused to grant the applicant his Employer Nomination visa on 14 May 2018.
On 16 May 2018, the applicant sought merits review of the delegate’s decision in the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal affirmed the delegate’s decision not the grant the applicant his Employer Nomination visa on 31 July 2018.
The applicant now seeks judicial review of the Tribunal’s decision.
The administrative appeals tribunal decision
Paragraphs 1 to 7 of the Tribunal’s decision record provides a background to the applicant’s visa application. At paragraph 8, the Tribunal states that issue with the matter concerned
cl 187.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Court notes that the Tribunal decision later refers to cl 187.233, which is essentially the same criteria but for the Direct Entry stream.
Paragraphs 9 and 10 explain the requirements of cl 187.233 of Schedule 2 to the Regulations. Relevantly, the position to which the applicant’s visa application relates must be the subject of an application for approval of a nomination position.
At paragraph 11, the Tribunal notes that the applicant provided a statement to the Tribunal prior to the hearing. The applicant explained that the nominator was not in business anymore and was closed due to “tiffs or personal reasons among the partners which has got nothing to do with my application”. The applicant had worked at the nominator for over one year and had missed other job opportunities while remaining with the nominator. The applicant has been in Australia for a decade and wishes to remain. The applicant explained that his situation was unfair and provided his 2016 and 2017 tax returns, as well as an employment agreement with the nominator.
At paragraph 12, the Tribunal notes that it explained to the applicant that one of the requirements for the grant of his visa was that he had an approved nominator. In this case, the position nomination was withdrawn by the nominator on 16 April 2018. At paragraph 13, the Tribunal recounts that the applicant explained that he will suffer for something that is not his fault, that he is now unable to apply for another visa and that he was disappointed but understands that the nominator had withdrawn its nomination application.
At paragraph 14, the Tribunal found that the applicant was not the subject of an approved nomination and that cl 187.233 of Schedule 2 to the Regulations was not met. At paragraph 15, the Tribunal notes that the applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream and that no claims had been made in relation to any other visa stream. As the requirements for a visa in the Direct Entry stream had not been met, the decision under review had to be affirmed.
Grounds of judicial review
The applicant’s grounds of judicial review are contained within an Initiating Application filed with the Court on 24 August 2018. They are as follows:
I have worked in the restaurant for over 1 year –
Tribunal member made decision and am still trying in context that if I manage another regional sponsor nomination.
I meet the criteria and regulations where AAT member made their decision.
AAT make decision where I suffer for something that is not my fault.
I applied in 2016 but the nomination withdrew by the restaurant in 2018
My application is not subject of an approved nomination therefore nomination is withdrew in 2018. So please need more time to find
The applicant’s submissions
The applicant appeared before the Court unrepresented. The applicant did not request the assistance of an interpreter and the Court was satisfied the applicant was able to properly participate in and follow the proceedings.
Despite Court orders, the applicant did not file any written submissions before the Hearing. The applicant instead sent an email to the Court on 27 October 2022 .The Court read its contents as submissions. Without objection by the first respondent, the Court has accepted this email as written submissions. The Court notes that the contents of this email mostly replicate a letter sent to the Tribunal by the applicant (Court Book page 113).
The applicant submits that he has worked hard and has waited for his permanent residency. The nominator withdrew its nomination after two years and his visa application was subsequently refused by the delegate and then the Tribunal.
The applicant submits that he has worked at the nominator for a very long time and had lodged his Employer Nomination visa when it was running well. The applicant repeated the same submission made to the Tribunal that the nominator shut down due to “tiffs or personal reasons among the partners after almost 2 years which has got nothing to do with my application” and that he has missed out on other job opportunities during his time with the nominator.
The applicant submits that he has been in Australia for 15 years and has always been a lawful resident. He has learned a lot and has plans to settle in Australia. It would be unfair not to grant the applicant’s Employer Nomination visa after he has followed the procedure and fulfilled all of the Subclass 187 conditions.
The applicant submits that he will suffer for something that is not related to him and that he cannot see himself going to his home country empty handed after such a long time.
The applicant submits that he is going through depression and is very stressed due to not having permanent residency. The applicant’s parents are retired and cannot support him.
During the course of the hearing the applicant again stated that the refusal of the visa was not his fault and it was unfair for him not to be granted his visa
CONSIDERATION
The first applicants submits that, as the applicant has not sought a writ of mandamus or prohibition or an injunction against the Tribunal, he has failed to properly invoke the jurisdiction of the Court: s 476(1) of the Migration Act 1958 (Cth) (‘the Act’). The Court otherwise has jurisdiction under s 477 of the Act. In the circumstances, given the applicant is unrepresented and the error is in the nature of a formality, the Court is prepared to allow such an amendment to cure the defect.
The first respondent submits that grounds 1 and 2 are not proper grounds of judicial review and misconceive the requirements of the criteria for the grant of a Subclass 187 visa. It is submitted that, to the extent that the ground relates to an email from the applicant to the Tribunal that post-dates the hearing date requesting more time to seek employment, the ground must fail as the nomination application cannot be substituted for a new nominator: Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [82]. The Court agrees with this submission.
The first respondent submits that grounds 3 and 4 invite the Court to engage in impermissible merits review and that the applicant did not identify any evidence that he was the subject of an approved nomination. Grounds 5 and 6 state that the applicant was not the subject of an approved nomination at the time of the Tribunal decision. He was therefore unable to meet cl 187.233 of Schedule 2 to the Regulations. The Court agrees with this submission.
The first respondent further submitted that even if jurisdictional error was established, which is not conceded, it would be futile to remit the matter back to the Tribunal: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. The applicant’s visa application cannot be assessed against a new nomination application. As the applicant’s previous nomination had been withdrawn by the nominator, the withdrawal was fatal to the applicant’s Employer Nomination visa application. The applicant would be unable to satisfy the criteria for the grant of the visa if it were to be remitted. The Court agrees with this submission.
conclusion
None of the grounds of judicial review show any jurisdictional error. As the applicant is unrepresented, the Court has perused the Tribunal decision record. The Court is unable to ascertain any unarticulated jurisdictional error.
The application must be dismissed
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 17 November 2022
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