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

[2021] FCCA 2071

FEDERAL CIRCUIT COURT OF AUSTRALIA

Shekhar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2071  

File number(s):

SYG 1917 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

16 August 2021

Catchwords:

 MIGRATION - Administrative Appeals Tribunal - Regional Employer Nomination visa – show cause hearing – whether arguable jurisdictional error – no arguable case for relief claimed – the application is dismissed under r 44.12 of the Federal Circuit Court Rules2001 (Cth).

Legislation:

 Migration Act 1958 (Cth) ss 359B, 359C, 360(2), 476,

Migration Regulations 1994 (Cth) cl 187.233

Federal Circuit Court Rules2001 (Cth) r 44.12

Number of paragraphs:

13

Date of hearing:

16 August 2021

Place:

Sydney

Solicitor for the Applicant:

In person.

Solicitor for the Respondents:

Ms S Roberts, Mills Oakley

ORDERS

SYG 1917 of 2019

BETWEEN:

SHEKHAR SHEKHAR
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:	16 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 applicant pay the first respondent’s costs in the amount of $3,737.00

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for review 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 5 July 2019 affirming the decision of a delegate of the first respondent (“the delegate”), not to grant the applicant a Regional Employer Nomination visa (“the Visa”). 

2. The applicant is a citizen of India, who applied for the visa on 3 September 2017. On 14 May 2018, the delegate found that the applicant failed to meet the criteria for the grant of the Visa, because the applicant did not have an approved nomination as required by cl 187.233 of the Migration Regulations 1994 (Cth) (“the Regulations”). 

3. The applicant applied for review on 25 May 2018. On 20 June 2019, the Tribunal wrote to the applicant, inviting the applicant to comment on the absence of an approved nomination. The letter complied with the requirements of s 359B of the Act.

4. The applicant did not respond within the time limit and lost the right to appear at a hearing before the Tribunal. The Tribunal found that the applicant did not have an approved nomination and that the applicant failed to meet the criteria under cl 187.233 of the Regulations and, affirmed the delegate’s decision under review. 

   BEFORE THE COURT

5. These proceedings were commenced on 29 July 2019 and were fixed for a show cause hearing today, under r 44.12 of the Federal Circuit Court Rules2001 (Cth) (“the Rules”).

6. The Court explained to the applicant the nature of the hearing.  The applicant made reference to his communications and trying to obtain an approved nomination from his employer.  The applicant’s submissions in substance, invited impermissible merits review.  Nothing said by the applicant, identified an arguable case for the relief claimed. 

   THE GROUNDS:

7. The grounds in the application are as follows.

   Ground One

   Administrative Appeal Tribunal made jurisdictional error of law when it took into account irrelevant consideration and misconduct the facts.

   Ground Two

   The applicant satisfies all requirements for visa. AAT and delegates overlooked or mistook the facts and made decision on limited information without considering all the information and circumstances.

   Ground Three

   Department of Immigration and AAT did not give him time and they refused his application.

   Ground Four

   AAT did not follow the rules and not call him for interview.

   CONSIDERATION

   GROUND 1

8. Without particulars, Ground 1 is incapable of identifying an arguable case of relevant error.  No irrelevant consideration has been identified and no misconstruction or factual error has been identified.  No arguable case of relevant error is disclosed by Ground 1.

   GROUND 2

9. In relation to Ground 2, the applicant lost the right to appear before the Tribunal when he failed to respond to the s 359 of the Act letter. There is no fact that has been identified that the Tribunal overlooked. The applicant’s personal circumstances did not identify a basis upon which the Tribunal could find that there was an approved nomination. The approved nomination was an essential criteria for the applicant to succeed and accordingly the applicant did not satisfy an essential requirement for the visa.  No arguable case of relevant error is disclosed by Ground 2.

   GROUND 3

10. In relation to Ground 3, this Court does not have power to review the decision of the delegate. In relation to the Tribunal, it is apparent that the applicant was given an opportunity to respond to the s 359 of the Act letter, and the applicant failed to respond within the time stipulated in the letter.  No arguable case of relevant error is disclosed by Ground 3.

    GROUND 4

11. In relation to Ground 4, the Tribunal was not required to call the applicant to give evidence when he failed to respond to the s 359 of the Act letter within the time specified, as per s 359C and s 360(2) of the Act. No rule has been identified that the Tribunal failed to follow.  No arguable case of relevant error is disclosed by ground four.

12. 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 matter in which to exercise the Court’s powers under r 44.12 of the Rules. 

13. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021