Shikha v Minister for Home Affairs

[2021] FCCA 927

FEDERAL CIRCUIT COURT OF AUSTRALIA

Shikha v Minister for Home Affairs [2021] FCCA 927  

File number:

ADG 143 of 2018

Judgment of:

JUDGE YOUNG

Date of judgment:

20 April 2021

Catchwords:

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to refuse to grant a Temporary Business Entry (Class UC) visa – whether the Tribunal failed to take into account relevant considerations – whether there was a reasonable apprehension of bias – whether the applicant was denied procedural fairness – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 65, 359A

Migration Regulations 1994 (Cth) sch 2 cl 457.233(4)

Number of paragraphs:

15

Date of hearing:

20 April 2021

Place:

Darwin

The Applicant:

Appearing on her own behalf

Solicitor for the First Respondent:

Ms Helsdon of Sparke Helmore

ORDERS

ADG 143 of 2018

BETWEEN:

SHIKHA SHIKHA

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	20 APRIL 2021

THE COURT ORDERS THAT:

1.The Application filed on 17 April 2018 is dismissed.

2.The Applicant is to pay the First Respondent’s costs in the fixed sum of $5,000.00.

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 20 March 2018.  The applicant applied for a Temporary Business Entry (Class UC) visa (the visa) which was refused under section 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister of Immigration and Border Protection (now the Minister for Home Affairs) (the delegate). The Tribunal affirmed the decision of the delegate on 20 March 2018. 

2. A mandatory criterion for the issue of such a visa was that the applicant needed to satisfy one of the criteria in clause 457.223(4) of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). This clause required an approved nomination of the applicant for the particular position. The approved nomination was a nomination by a prospective employer. 

3. In this case the prospective employer of the applicant, Clappy Bhatia, was refused a nomination by the delegate. Subsequently, that refusal was affirmed by the Tribunal on 5 January 2018.  In other words, as of 5 January 2018 it was apparent that the applicant did not satisfy a mandatory criterion for the grant of the visa she sought. 

4. On 28 February 2018, the Tribunal wrote to the applicant pursuant to section 359A of the Act and indicated to her that the absence of the approved nomination would be a reason for the refusal of her application. There was no reply to that letter.

5. On 20 March 2018, the Tribunal made the decision to refuse to issue the applicant the visa pursuant to section 65 of the Act. The Tribunal was required to make this decision having regard to the circumstances of the matter.

6. The applicant’s application for review to this Court is evidently drafted either by herself or with the assistance of someone who shows no indication of legal training.  The grounds are a mixture of grounds that are clearly not apposite but do, in some respects, adopt the correct language. 

7. The complaint by the applicant that the Tribunal has in some sense misunderstood the question of whether a chef or a cook was a required role in the nominating business is not relevant to the judicial review being conducted.  The reason for the refusal of the nomination of Clappy Bhatia is not an issue before me.  I do not know why that was refused.  There is no challenge to that refusal as far as I am aware. It is not my function in considering the current application to look into the reasons for the Tribunal’s refusal of the nomination. 

8. The applicant asserts that the Tribunal fell into jurisdictional error by failing to consider the evidence before it, particularly, by discounting evidence that the delegate had incorrectly assessed the nomination of the applicant as not genuine.  There is no evidence before me about that. However, there is also no material before me to suggest that the Tribunal was presented with such material, nor that the Tribunal discounted that evidence. 

9. In the circumstances the Tribunal was required to consider that the applicant was not the subject of an approved nomination.  This in itself is sufficient to result in the refusal of the visa application. 

10. The applicant’s assertion about the delegate’s findings is not relevant to an issue of whether the Tribunal was guilty of jurisdictional error. 

11. There is an allegation that the Tribunal displayed bias against the applicant and the sponsor, presumably this is a reference to Clappy Bhatia.  There is no evidence before me of any bias. There is no evidence that there was any bias in the conduct of the hearing by the Tribunal, and certainly no evidence of bias in its reasons. 

12. There is also an allegation that there has been a lack of procedural fairness.  I can see no evidence of a lack of procedural fairness. 

13. The applicant made no written submissions and her oral submissions were extremely limited. The submissions went no further than asserting that the refusal of Clappy Bhatia’s application for an approved nomination was wrong.  There was no reference to any other matter made in oral submissions. The oral submissions were of no assistance. 

14. I am not satisfied that there is jurisdictional error of any kind.

15. There will be an order for costs in the sum of $5,000.00. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       4 May 2021