SINGH v Minister for Home Affairs

[2018] FCCA 3202

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3202

Catchwords:
CITIZENSHIP AND MIGRATION – Migration – Review of decisions – Judicial review – decision of Administrative Appeals Tribunal – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994, cl.186.223, Pt 186, Sch 2

Applicant: GURBRINDER SINGH

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 244 of 2018

Judgment of: Judge Jarrett

Hearing date: 19 October 2018

Date of Last Submission: 19 October 2018

Delivered at: Brisbane

Delivered on: 19 October 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed on 14 March, 2018 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 244 of 2018

GURBRINDER SINGH

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal that was given on 22 February, 2018.  Before the AAT was an application to review a decision of a delegate of the first respondent that was made on 26 August, 2016 to refuse to grant to the applicant an Employer Nomination (Permanent) (Class EN) visa.  The applicant had applied for that visa on 5 January, 2016. 

2. A criteria for the grant of the subclass 186 visa for which the applicant had applied was prescribed in Part 186 of Schedule 2 of the Migration Regulations 1994. It required there to be a nomination by an approved employer whose approval had not subsequently been withdrawn. There were other criteria for the grant of the visa set out in cl.186.223 of Sch 2 to the Migration Regulations.

3. It is common ground that at the time the matter was before the delegate and before the Tribunal there was no approved employer nomination for the purposes of the applicant’s visa criterion. There had been an application for nomination by the applicant’s intended employer, but that application had been refused. On 5 February 2018, the second respondent had affirmed a decision of a delegate of the first respondent not to approve the nomination of the applicant by his intended employer. That the application for review of that decision by the AAT had been refused was put to the applicant utilising the procedures set out in s.359A of the Migration Act 1958 (Cth). He was invited to comment on that information because it was adverse to his interests.

4. The existence of that decision and the refusal to grant his employer the relevant nomination, or approval of the relevant nomination, I should say, meant that the applicant could not succeed in his visa application.  He seems to have accepted as much before me.  Because he could not demonstrate that there was an approved nomination, his visa application could not succeed. 

5. The decision of the delegate was affirmed and it is from that decision that he now seeks judicial review. His original application filed in these proceedings on 14 March, 2018 sets out a number of grounds. He says that there was bias on the part of the Tribunal, but there is nothing in the material before me, either in the Tribunal’s reasons or anything within the court book, that suggests that the Tribunal was actually or apparently biased against him. The Tribunal made the decision which was really the only decision that was open to it on the facts before it.

6. The applicant argues that the Tribunal ought to have taken into account that the decision that had been made by the delegate and on review by the AAT to refuse approval for the relevant nomination that had been applied for by his employer was wrong.  He argued that there were factual errors relating to the relevant payments made by the employer for “training benchmark” and that meant that his employer’s application for nomination ought to have been approved and therefore his visa application ought to have been allowed as well. 

7. The difficulty with that argument is that the delegate decided against the approval of the relevant nomination and, upon review, the Tribunal affirmed that decision.  There is presently no application for review of that decision of which I am aware that has been made to this court and allowed.  The applicant has said from the Bar table that his employer intends to make an application to appeal the AAT’s decision when he is well enough.  He does not know when that might be.  He is apparently suffering a medical condition that prevents him from doing that at the moment.  But whether he is permitted to bring an application for judicial review out of time – because, clearly, it is now out of time – remains to be seen. 

8. The applicant’s argument is dependent upon a third party, his employer, bringing an application to extend time within which to bring an application for judicial review.  It is seemingly unlikely that that will happen because when the applicant commenced his submissions before me he sought an adjournment for a couple of months whilst he gathered some money so that he could pay for legal advice or legal representation on this application and, in doing so, said that he had secured a new job because his employer no longer wished to proceed with employing him. 

9. So, in those circumstances, it is unlikely that his employer will bring an application to extend the time within which to bring an all for judicial review against the AAT’s decision to affirm a decision of the delegate to not approve the employer nomination in the first place.  In any event even if his hoped-for employer embarked on that course, it would not assist the applicant on this application.

10. Having had the opportunity to consider the Tribunal’s decision for myself against the material in the court book, it is plain, in my view, that the Tribunal reached the only decision that it could reach on the material before it.  In those circumstances, I am not satisfied that the Tribunal’s decision is affected by jurisdictional error and the application for judicial review must be dismissed with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Date:  7 November 2018