Sharada Rai and Rajib Malakar v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 613
•22 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rai v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 613
File number(s): SYG 804 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 22 August 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Employer Nomination (Permanent) (Class RN) visas – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 1 August 2022 Date of hearing: 1 August 2022 Place: Parramatta Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Mr Dadgar appeared on behalf of the First Respondent. ORDERS
SYG 804 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHARADA RAI
First Applicant
RAJIB MALAKAR
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:
22 AUGUST 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 and Second Applicant to pay the First Respondent’s costs, jointly and severally, in the fixed amount of $5600.00.
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 first and second applicants (“the applicants”) are citizens of Nepal. The applicants arrived in Australia on 14 July 2012 for the purpose of the first applicant to study.
On 7 December 2016 the applicants applied for Regional Employer Nomination (Permanent) (Class RN) visas (“Regional Employer visa”). On 3 May 2018 a delegate of the Minister for Immigration (‘a delegate”) refused to grant the applicants their Regional Employer visa.
On 3 May 2018, the applicants sought merits review of the delegate’s decision at the Administrative Appeal Tribunal (“the Tribunal”). In a decision dated 20 April 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants their Regional Employer visa.
The applicants now seek judicial review of the Tribunal’s decision in this Court.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is short consisting of 21 paragraphs across 3 pages. The decision record begins from paragraphs 1 to 7 by outlining the procedural background of the applicants’ visa application.
At paragraph 8 of the decision record, the Tribunal noted that the applicants were invited to attend a hearing on 17 March 2021. The hearing invitation also invited the applicants to comment on or respond to information that a differently constituted Tribunal had affirmed the decision not to approve the nomination. The Tribunal further noted that an adjournment request was received that indicated that the first applicant was pregnant and that the stress of the hearing would be adverse to the health of the baby. The documentation received by the Tribunal as part of the adjournment request showed that the baby was due in September 2021. With no medical concerns highlighted, the Tribunal accepted the applicants’ representative’s request for an extension of time and rescheduled the hearing to 24 March 2021.
On 23 March 2021, the Tribunal received correspondence from the Applicants’ representative that stated that the first applicant was experiencing health issues. A medical certificate was attached to the correspondence which stated that the first applicant was receiving medical treatment and would be unfit for her usual occupation from 23 to 25 March 2021, but did not give any details as to why. The Tribunal further rescheduled the hearing to 9 April 2021.
Paragraphs 11 to 13 of the decision record provide the legislative requirements for the grant of the Regional Employer visa, including that the applicants must satisfy cl 187.233 to Schedule 2 of the Migration Regulation 1994 (Cth) (“the Regulations”).
At paragraph 15 of the decision record, the Tribunal noted that on 2 December 2020 a differently constituted Tribunal affirmed the delegate’s decision not to approve the nomination. The Tribunal further noted that the applicants previously received an invitation to comment on or respond to information that the nomination had not been approved and the relevance of
cl 187.233(3) to Schedule 2 of the Regulations.
At paragraph 16 of the decision record, the Tribunal noted that at the 9 April 2021 hearing the first applicant confirmed that her visa application was made in respect of the nomination by RNM Enterprise Pty Ltd. The first applicant indicated to the Tribunal that she had been aware that the nomination had not been approved since 3 December 2020. The Tribunal further acknowledged comments made by the first applicant regarding her individual circumstances and the effect of the COVID-19 pandemic.
At paragraph 17 of the decision record, the Tribunal considered the first applicant’s individual circumstances but found that they did not have any discretion in relation to the cl 187.233(3) criteria. The Tribunal acknowledged that extensive processes would need to be undertaken to overcome there being no nomination but found that it was not appropriate to delay the decision, particularly given that the first applicant was aware of the nominator’s position and subsequent nomination decision since 3 December 2020.
At paragraph 18 of the decision record, the Tribunal found that the first applicant’s position to which the visa application relates had not been approved and cl 187.233(3) to Schedule 2 of the Regulations was not met. At paragraph 19 and 20 of the decision record, the Tribunal noted that the first applicant had only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. As the requirements for the Direct Entry stream had not been met, the decision of the delegate had to be affirmed.
THE GROUNDS OF JUDICIAL REVIEW
The applicants rely on three grounds of judicial review. The grounds of judicial review are contained within an Initiating Application filed with the Court on 7 May 2021. The grounds are as follows verbatim:
1. The Administrative Appeals Tribunal failed to apply criteria for a Subclass 187 visa as set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) at the relevant time and made legal error.
2. That the Administrative Appeals Tribunal did not consider the first named applicant (the applicant) visa in the Direct Entry Stream in the nominated position of Restaurant Manager, and made error.
3. That the Administrative Appeals Tribunal failed to consider at Paragraph – 13: “the position is still available to the applicant” and factual error.
THE APPLICANTS’ SUBMISSIONS
The first applicant appeared before the Court unrepresented. No Interpreter was requested. The Court was satisfied that the first applicant possessed adequate English language skills to effectively participate in the hearing and present arguments and give evidence.
Prior to the hearing commencing, the Court ensured that the applicants had been provided with a copy of the relevant Court Books and a copy of the first respondent’s written submissions. The Court also ensured that the first applicant had access to a pen and paper to take notes during the course of the hearing, should the wish to do so.
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 how the hearing would be conducted.
Despite Court orders, no written submissions or other material was filed by the applicants’ in support of their application. The first applicant told the Court that it took two years for the Tribunal hearing to occur and during that time, her employer nominator closed the business. It was for this reason only, that she did not have a nominator.
CONSIDERATION
Grounds one to three are allegations that the Tribunal failed to apply the criteria for a Subclass 187 visa. The grounds are un-particularised. For that reason alone, it is subject to dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
The first respondent submitted that the Tribunal correctly identified the relevant issue for consideration, was whether or not, there was an approved nomination. Further, the applicant acknowledged to the Tribunal that she understood that there was no approved nomination.
In these circumstances, the first applicant failed to satisfy the criteria in cl 187.233(3) of the Regulations. The Tribunal had no option other than to affirm the decision under review. In order to be granted an employer sponsored type visa, the applicant must have an approved employer nomination. The first applicant did not. The fact that the position was “still open” to her, as set out in ground three, was irrelevant. Either the first applicant had an approved nomination, or she did not. The Court agreed with these submissions. None of the grounds of judicial review have any merit.
As the second applicant’s visa was dependant on the first applicant’s visa being granted, his application must also fail.
As the applicants’ were unrepresented, the Court has carefully perused the Tribunal decision record, but is unable to find 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: 22 August 2022
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