Shah v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 960
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shah v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 960
File number(s): MLG 2790 of 2018 Judgment of: JUDGE HUMPHREYS Date of judgment: 17 November 2022 Catchwords: MIGRATION – Administrative Appeal Tribunal – Regional Employer Nomination (Permanents) (Class RN) visa – whether the applicant denied procedural fairness. Legislation: Migration Act 1958 (Cth) ss 347, 348, 359A, 360, 363
Migration Regulations 1994 (Cth) regs
Cases cited: Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Singh v Minister for Immigration and Border Protection [2017] FCAFC 105
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 11 November 2022 Date of hearing: 11 November 2022 Place: Sydney Counsel for the Applicants: The Applicant appeared in person. Solicitor for the Respondents: Mr Creedon appeared on behalf of the First Respondent - AGS ORDERS
MLG 2790 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMRISH CHANDRAVADAN SHAH
First Applicant
BIJAL AMRISH SHAH
Second 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 First Applicant is to pay the First Respondents costs, fixed in the amount of $4000.00.
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 applicants are citizens of India. The first applicant is the primary applicant. The second applicant is the spouse of the first applicant. The applicants applied for an Employer Nomination (Permanent) (Class EN) visa (“Employer Nomination visa”) on 26 September 2016. On 25 May 2017, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicants their Employer Nomination visa.
On 9 June 2017, the applicants applied for merits review of the delegate’s decision to the Administrative Appeals Tribunal (“the Tribunal”). On 28 August 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants their Employer Nomination visa.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
The Administrative Appeals Tribunal decision
Paragraphs 1 to 5 of the Tribunal’s decision record provides the procedural history of the applicants’ visa application.
The applicants applied for the visas on 26 September 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of accountant. The application of the second named applicant is based on her being a member of the family unit of a person who meets the primary criteria.
The delegate refused to grant the visas because the applicant did not meet cl.186.223 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination.
At paragraph 6 and onwards of the decision record, the Tribunal provides the applicants background.
Paragraphs 15 and onwards of the Tribunal decision record records the consideration of the applicants’ claims and evidence. The issue in this case, is whether the first applicant is the subject of an approved nomination.
At paragraph 23 of the Tribunal decision, it found that as the first applicant is not the subject of an approved nomination, that cl 186.223 of the Regulations is not met.
At paragraph 25 of the decision record, the Tribunal affirms the delegates decision not to grant the applicants’ Employer Nomination (Permanent) (Class EN) visas.
Grounds of judicial review
The applicants’ grounds of judicial review are contained within an Initiating Application filed with the Court on 17 September 2018. The grounds are reproduced below as they appear in the application verbatim:
1.I Amrish Chandravadan Shah born on 11/05/1975, a citizen of lndia Passport Number JI 525125, declare that I along with my partner, Mrs. Bijal Amrish Shah (Secondary applicant), made an application for a Subclass 186 (Employer Nomination Scheme) (TRT Stream) visa on 26th September 2016 on the basis of the nomination lodged by the business, ESOFT SOLUTIONS PTY LTD, for position of Accountant. The application for ENS visa was refused by the Department of Home Affairs (DHA) on 25th May 2017. The delegate from DHA refused the visa application for not meeting the cl 186.223 of the Migration Regulations. The nomination application pertaining to the visa application was refused by the department on 14th March 2017 as the nominating business was assessed as financially unviable and therefore the visa application was refused subsequently for not being accompanied with an approved nomination as required under cl 186.223.
2.I then referred the matter to Administrative Appeals Tribunal (AAT) in the hope of availing a favourable decision on my Partner visa application. However, the Tribunal also affirmed the decision on 28th August 2018 to not to grant me Subclass 186 (Employer Nomination Scheme) visa again for failing to meet the criterion as set under cl 186.223 of the Migration Regulations.
3.In spite of the clear evidences and concrete facts presented before the Department of Home Affairs and the AAT, both parties refused the visa application on incorrect grounds. We have produced substantial documents substantiating the financial viability of the nominating business. On date of tribunal hearing for the Subclass 186 visa application, we had produced the BAS statements of the nominating business which clearly indicated that business was profitable at that time. In addition to that, we had also submitted evidences that the nominating business has lodged for a fresh nomination pe1taining to the visa application. However, the tribunal ignored all the new information presented on the matter and decided to refuse our Subclass-186 ENS visa application. There has been discrepancies in the refusal grounds given by both Department of Home Affairs and the Administrative Appeals Tribunal. The decision given both departments lack procedural interpretation and have not considered all circumstances around ENS visa application.
4.I believe that the tribunal fell into jurisdictional error by acting unreasonably while considering my visa application. Therefore, I am now seeking intervention from the Honourable Federal Circuit Court as I believe that there was a jurisdiction error in the decision.
The applicants’ submissions
The applicants appeared before the Court unrepresented. The second applicant appeared on behalf of herself and the first applicant. No interpreter was requested and the Court was satisfied that the English language skills of the applicants was more than sufficient for them to follow and participate in the hearing
Prior to the hearing commencing, the Court ensured that the first applicant was in possession of a copy of the relevant Court books and the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicants in support of their case. The applicant’s emailed to the Court some recent Business Activity Statements in relation to the employer nominator. This material was provided in an attempt to show the business was viable. The Court did not receive these into evidence as they had no relevance to the proceedings before the Court.
Consideration
In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister. The court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
Grounds 1 and 2 do not disclose any jurisdictional error. They merely set out the background of the matter. They have no merit.
To the extent that the applicant’s grounds of judicial review take issue with any findings of the delegate, it was submitted by the First Respondent that the Court has no jurisdiction to review the delegate’s decision; s 476(2)(a) and 4(a) of the Migration Act 1958 (Cth) (“the Act”). The Court agrees with this submission.
Ground 3 is a complaint that the Tribunal did not consider the primary applicant’s evidence submitted at the hearing nor did it consider the circumstances around the application for the visa. The first respondent submitted that the only relevant matter and dispositive matter in this case was whether, at the time of the Tribunal’s decision, the applicant had an approved employer nominator for the position that was nominated so as to satisfy cl 186.223 of the Regulations. He did not. In those circumstances the Tribunal had no choice but to affirm the decision under review.
Even if a new application were made he could not satisfy cl 186.223(2) as the visa application attaches to a specific nomination application: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 105 at [88] – [90] (“Singh”)). Further it would be futile to remit the matter back to the Tribunal even if jurisdictional error had occurred (which was not admitted) as the Tribunal would be bound to make the same decision: (see; Singh at [39], [88] – [90]). The Court agrees with this submission.
Ground 3 is a general assertion that the Tribunal acted unreasonably in refusing to delay making its decision. The Court does not accept this submission. The applicant had no approved employer nomination. The Tribunal had affirmed the decision to refuse the nomination by the employer on 12 June 2018. No new nomination could cure that issue. Given the issue of the nominator had been determined, no amount of delay could have cured the dispositive issue for the applicants. Ground 3 had no merit.
As the applicants are unrepresented the Court has perused the Tribunal decision record but is unable to ascertain any unarticulated jurisdictional error.
Conclusion
Accordingly, 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. Associate:
Dated: 17 November 2022
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