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

[2021] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sidhu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2083

File number(s):

SYG 669 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

17 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) Visas – where the first applicant did not have an approved nomination – where the delegate found that the second and third applicants were not members of a family unit subject to an approved nomination – where the applicants’ submissions invited impermissible merits review – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court 2001 (Cth)

Legislation:

Migration Act 1958 (Cth) ss 359A, 476

Migration Regulations 1994 (Cth) cls 187.233, 187.233(3)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

22

Date of hearing:

17 August 2021

Place:

Sydney

Solicitor for the applicant:

First applicant, in person

Solicitor for the first respondent:

Ms J Strugnell, Minter Ellison

ORDERS

SYG 669 of 2021

BETWEEN:

GURPREET SINGH SIDHU

First Applicant

BALJIT KAUR BRAR

Second Applicant

GURNIWAAZ SINGH SIDHU

Third 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:	17 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 first and second applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ 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 26 March 2021, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) Visas (“the Visas”).

   BACKGROUND 

2. The applicants are citizens of India. The first applicant is the husband of the second applicant, and the third applicant is the son in respect of whom there has been a litigation guardian order made. 

3. On 22 May 2018, the applicants were informed that the delegate refused the grant of the Visas. The delegate found that the applicants did not satisfy the requirement under cl 187.233(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) because there was no approved nomination.

4. On 6 June 2018, the applicants applied to the Tribunal for review.

5. On 2 February 2021, the applicants requested that the third applicant’s application be joined to the existing Tribunal’s application for review.

6. On 15 February 2021, the Tribunal invited the applicants to attend a hearing on 24 March 2021. On 2 March 2021, the Tribunal sent an invitation to comment letter pursuant to s 359A of the Act, which identified that there was no approved nomination for the position of cook.

7. On 24 March 2021, the first applicant attended the hearing before the Tribunal to give evidence and present arguments.

8. On 26 March 2021, the Tribunal affirmed the delegate’s decision. The Tribunal found that the first applicant did not have an approved nomination, which was an essential criteria under cl 187.233 of the Regulations. In those circumstances, the Tribunal also found that the second and third applicants could not succeed as members of the family unit.

   BEFORE THE COURT

9. These proceedings were commenced on 16 April 2021, and were fixed for a show cause hearing today, 17 August 2021, under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

10. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing. The applicant sought to explain that the fact that he did not have an approved nomination was not his fault. The first applicant also submitted that his employer had made a mistake, and that his employer had not been given a proper opportunity to provide the approved nomination.

11. None of those matters are capable of giving rise to an arguable case of relevant error by the Tribunal. If the first applicant did not have an approved nomination, whatever the reason for its absence, the first applicant could not succeed before the Tribunal, particularly where that issue was one that the Tribunal had raised with the applicants under s 359A of the Act. The first applicant’s submissions otherwise invited this Court to engage in an impermissible merits review. Nothing said by the applicant identified an arguable case for the relief claimed.

    THE GROUNDS

12. The grounds in the application are as follows:

    Ground 1

    1.The applicant seeks judicial review of the decision of Administrative Review Tribunal in this matter on the grounds that the tribunal erred jurisdictionally in determining the application adversely and failed to find that I satisfied the relevant provisions of the Migration Act 1958 and Migration Regulations 1994. My application has been dealt with and decided unfairly due to the following reasons.

    Ground 2

    2.That the Tribunal has not reviewed my file properly and has not given me fair chance to represent myself accordance with the requirements of s.187.233(2) of the Act.

    Ground 3

    3.That ground of visa refusal was dismissal of my nomination.

    Ground 4

    4.That I have not received any communication regarding associated nomination application.

    Ground 5

    5.That I have provided all the correspondence to the Administrative Appeals Tribunal and they have overlooked the facts of the matter.

    Ground 6

    6.The AAT has not given me opportunity for a haring which I deserve and decided based on their assumptions. My reasons put forward to AAT with evidence were not considered as the member of the AAT has made an error of law and given me a fair hearing.

    Ground 7

    7.The tribunal member overlooked the facts and refused the visa without considering my documents and has not given me a fair hearing.

    Ground 8

    8.That this is an error of law and I request for an order that the decision of the tribunal, be quashed,

    Ground 9

    9.That I request the respected registrar of the federal circuit court to intervene in this matter and revert the matter back to the AAT fair hearing.

    CONSIDERATION

13. In Grounds 1 and 2, the first applicant contends that the decision was unfair, and asserts that he did not have a fair chance to represent himself in accordance with the requirements of cl 187.233 of the Regulations. Those propositions are without substance. The Tribunal squarely raised with the applicants the want of an approved nomination in accordance with s 359A of the Act. The applicant was afforded procedural fairness and had a real and genuine hearing. No arguable case of jurisdictional error is disclosed by Grounds 1 and 2.

14. The first applicant does correctly identify, at Ground 3, the ground of the dismissal, being that he did not have an approved nomination. The first applicant complains that he did not have a chance to participate in that process. That is incorrect and the applicant was on notice of the need for an approved nomination. Ground 3 does not disclose to any error by the Tribunal.

15. As to Grounds 4 and 5 the first applicant was given notice of the need for an approved nomination by the Tribunal’s letter dated 2 March 2021. The first applicant referred to the correspondence, which sought to explain the circumstances in which there was no approved nomination. None of those circumstances give rise to any arguable case of relevant error. No arguable error is disclosed by Ground 4 or Ground 5

16. As to Ground 6 the Tribunal was not required to give the first applicant a further opportunity to revisit a different Tribunal’s decision in respect of the absence of an approved nomination. The first applicant’s documents were ones that went to explain why there was no approved nomination; none of which was relevant to the Tribunal if the first applicant did not, in fact, have an approved nomination. That was an essential criteria to succeed before the Tribunal. The applicant did on the face of the material before the Court have a real and meaningful hearing. There is no basis to find that the applicant had an unfair hearing. This Ground really invites merits review. No arguable case of jurisdictional error is disclosed by Ground 6

17. Ground 7 again misunderstands that the reasons for not having an approved nomination and the correspondence concerning the same could not satisfy the essential criteria. The assertion of an unfair hearing is incorrect as the applicant was on notice of the need for an approved nomination. No arguable jurisdictional error is disclosed by Ground 7.

18. Ground 8 asserts an error of law inviting merits review as no error of law is identifiable. This Ground really invites merits review. No arguable case of jurisdictional error is disclosed by Ground 8.

19. Ground 9 fails to identify any arguable error as it invites merits.

20. There is no arguable error of law that has been identified. In substance, Grounds 1 to 9 seek impermissible merits review.

21. The Court is not satisfied that the Grounds in the originating application have 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 Federal Circuit Court Rules 2001 (Cth).

22. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty two (22) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 6 October 2021