Singh v Minister for Immigration

[2019] FCCA 1614

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1614

Catchwords:
MIGRATION – Administrative Appeals Tribunal – show cause – Employer Nomination (Permanent) (class EN) visa – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth).

Migration Act 1958 (Cth).

Migration Regulations 1994 (Cth).

Cases cited:

MZAJQ v Minister for Immigration & Anor [2015] FCCA 593

Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328

Singh v Minister for Immigration and Border Protection [2017] FCAFC 105

Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR

612; 269 ALR 233

SZUTB v Minister for Immigration and Border Protection & Anor [2015] FCCA 1383

Applicant: SIMARJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: ADMINSITRATIVE APPEALS TRIBUNAL

File Number: MLG 2845 of 2017

Judgment of: Judge Mercuri

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Melbourne

Delivered on: 13 June 2019

REPRESENTATION

Advocate for the applicant: In person

Solicitor for the applicant: None

Advocate for the respondents: Ms Roberts

Solicitors for the respondents: Mills Oakley Lawyers

ORDERS

1. The applicant’s application filed on 22 December 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2845 OF 2017

SIMARJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the tribunal”) dated 7 December 2017 by which the tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant an Employer Nomination (Permanent) (class EN) visa (“the visa”). 

2. By orders made by consent on 19 September 2018, this matter was listed for a show cause hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) to be held on 3 June 2019.

Background

1. The applicant, a citizen of India, applied to the Department of Immigration (“the department”) for the visa on 11 November 2015.[1] The applicant applied for an Employer Nomination (subclass 186) visa in the Temporary Residence Transition (“TRT”) stream. The TRT stream is designed for subclass 457 visa holders who have worked for their employer for two years, and where the employer has offered them a permanent position. At the time that he lodged his application, the applicant had worked for Zoom Auto Services Pty Ltd for more than two years.

   [1] Court book pages 1 to 10.

2. In his application, the applicant indicated that he had a migration agent and authorised the migration agent to receive correspondence on his behalf.

3. The applicant was nominated by Zoom Auto Services Pty Ltd and on 27 July 2016, the applicant was advised that the nomination submitted by Zoom Auto Services Pty Ltd had been refused.[2]

   [2] Court book page 63.

4. By letter dated 27 July 2016, the department wrote to the applicant, via his nominated migration agent, and invited him to respond in writing within 28 days. The applicant was advised in this correspondence that he had two options; either withdraw his application, or alternatively allow the application to be refused, thereby entitling him to seek a merits review of the refusal decision before the Administrative Appeals Tribunal.  

5. No response was received to that letter. 

6. By letter dated 6 September 2016, the applicant was advised that his application for the visa had been refused.[3] The decision record is set out at court book pages 71 to 73.

   [3] Court book page 68 to 70.

7. The criteria for the grant of a subclass 186 visa are set out in part 186 of schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

8. The Minister’s delegate refused to grant the visa because the applicant did not meet clause 186.223 of schedule 2 to the Regulations, which relevantly provided:

   (1)The position to which the application relates is the position:

   (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and

   (b)in relation to which the applicant is identified as the holder of a Subclass 457 (Temporary Work (Skilled) visa; and

   (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)The Minister has approved the nomination.

   (3)The nomination has not subsequently been withdrawn.

   (4)The position is still available to the applicant.

   (5)The application for the visa is made no more than 6 months after the Minister approved the nomination.

9. The delegate of the Minister further noted in her reasons that on 27 July 2016, the nomination lodged by Zoom Auto Services Pty Ltd was refused by the delegate. Consequently, clause 186.223(2) of the Regulations was not met.

10. The applicant applied for a review of the delegate’s decision on 18 September 2016.[4] It is noteworthy that at this stage, the applicant remained represented by the same migration agent who assisted him with his application for the visa in the first instance. 

    [4] Court book pages 74 to 75.

11. By letter dated 25 August 2017, the applicant was invited to attend a hearing before the tribunal which was scheduled to occur on 13 September 2017.

12. On 4 September 2017, the applicant’s migration agent emailed the tribunal requesting a postponement of the scheduled hearing on the basis that an application for review had been lodged in respect of the decision to refuse Zoom Auto Services Pty Ltd’s nomination and that application had not yet been determined.[5] 

    [5] Court book page 95.

13. The tribunal then cancelled the hearing scheduled for 13 September 2017 as a result of the applicant’s request and advised the applicant’s migration agent on 5 September 2017.[6]

    [6] Court book page 97.

14. On 22 November 2017, the tribunal wrote to the applicant inviting him to respond in writing to information pursuant to section 359A(1) of the Migration Act 1958 (Cth) (“the Act”). The letter of 22 November 2017 contained the following particulars:

    ·Your visa application was refused by the Department on 6 September 2016 because the nomination mentioned in clause 186.223 has not been approved.

    ·The decision not to approve the nomination lodged by Zoom Auto Services Pty Ltd was made by the Department on 27 July 2016.

    ·Zoom Auto Services Pty Ltd applied for review of this decision at this Tribunal on 13 August 2016. On 21 November 2017, the Tribunal affirmed the primary decision related to the nomination application.[7]

    [7] Court book page 100.

15. The tribunal went on to state:

    This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 186 visa. This is because one of the criteria contained within subclass 186, namely clause 186.233 requires that the nomination was approved by the Minister…

    If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 186.223.[8] 

    [8] Court book page 100.

16. The applicant was invited to comment on this information by 6 December 2017.[9]

    [9] Court book page 100 to 101.

17. It appears from the court book that no response was received by the tribunal and on 7 December 2017, the tribunal advised the applicant of its decision to affirm the delegate’s decision not to grant the applicant the visa.[10]

    [10] Court book page 103 to 108.

The tribunal’s reasons

1. After setting out the background to this matter, the tribunal noted that the applicant had not responded to its correspondence dated 22 November 2017, nor had he sought an extension of time within which to provide such a response.

2. The tribunal also considered whether it should adjourn the review to allow the applicant additional time in which to submit further information.

3. The tribunal considered:

   a)the central issue in this matter is the fact that the applicant’s failure to meet the requirements of clause 186.223 of schedule 2 of the Regulations;

   b)it has been clear to the applicant and his representative, that this is the key issue since the delegate’s decision in September 2016;

   c)that the applicant has had the benefit of representation throughout the process; and

   d)the impact on the applicant if a visa is not granted; namely, that he may need to leave the country, although it acknowledged that there was nothing stopping the applicant from reapplying for the visa once the department approved nomination by his prospective employer.

4. Ultimately, the tribunal considered that the applicant had had ample opportunity to ‘address the central issue arising in the application for review’[11] and decided not to exercise its discretion to adjourn the review any further. 

   [11] Court book page 107 at paragraph [15].

5. In considering the claims and the evidence before it, the tribunal noted the requirements of clause 186.223 of the Regulations.

6. The tribunal found on the evidence before it that the:

   …appointment mentioned in subclause 187.233 lodged by Zoom Auto Services Pty Ltd on behalf of the applicant, has not been approved at the time of the tribunal’s decision. As a result, the tribunal finds that the applicant does not meet the requirements of clause 187.233 at the time of its decision.[12]

   [12] Court book page 108 at paragraph [19].

7. The tribunal therefore affirmed the decision under review.

Proceedings before this Court

1. The application filed in this Court on 22 December 2017 raises the following grounds of review:

   1.The decision maker failed to apply the rules of procedural fairness.

   2.There was unfairness and failure to take into consideration that the Applicant satisfied the 457 criteria and completed more than 2 years employment, prior to applying for the  186  application. 

   3.That at the time of application for the 186 application, the applicant had complied with all requirements.

   4.The applicant visa was refused by the department because the Department claimed that the applicant did not meet cl  186.223. The department has made an error as at the time the applicant satisfied all his 457 and 189 requirements prior to the nomination being cancelled.

   5.That by the time the nomination was refused the applicant had satisfied all the requirements for the 457 and 186  application and therefore should not have be disadvantage because of the nomination being refused. The applicant had satisfied the work requirements and provided all documents in support.

   6.Further, the nomination being refused was a direct consequence of the conduct of the nominator Zoom Auto Services Pty Ltd, which conduct is outside the control of the applicant.

   7.It can not be the intend of the regulations to deprive the applicant his rights where he has satisfied all conditions save for the conduct of the nominator which he has no control over.

   8.There was a failure to consider errors and correctness in the interpretation and construction of the facts.

   9.There was an error in law in that all relevant considerations were not taken into account.

2. As stated above, consent orders were made on 19 September 2018 which, as well as providing for the application to be listed for a show cause hearing pursuant to rule 44.12 Federal Circuit Court Rules 2001 (Cth) on 3 June 2019, permitted the applicant to file and serve any amended application with proper particulars of the grounds upon which he sought to rely, a supplementary court book if any and written submissions 28 days prior to the hearing.

3. Notwithstanding these orders, the applicant did not file any amended application, further particularise his application or file any written submissions.

4. Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) relevantly provides:

   (1)At a hearing of an application for an order to show cause, the Court may:

   (a)If it is not satisfied that the application has raised an arguable case for the relief claimed – dismiss the application; or

   (b)If it is satisfied that the application has raised an arguable case for the relief claimed – adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)Without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

5. At the commencement of the proceedings, I explained to the applicant that this was a ‘show cause’ hearing and that if the applicant did not satisfy the Court that his application had raised an arguable case, that the Court had the power to dismiss the application.

6. Rule 44.13 of the Federal Circuit Court Rules 2001 (Cth) also provides:

   (1)At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.

7. As stated above, the applicant represented himself in the proceedings before this court. A Punjabi interpreter was made available to the applicant; however, at the commencement of the proceedings, he indicated that he did not require the assistance of that interpreter. It was apparent from the applicant’s oral submissions and his response to questions from me, that he understood the proceedings and was able to articulate his submissions.

8. At the hearing, the applicant was invited to make any further submissions in support of his grounds of review. 

9. In summary, the applicant’s oral submissions addressed the following points:

   a)he was told by his migration agent that he had to work for an employer for two years for at least 38 hours per week and that once he did this he could apply for permanent residency;

   b)he says that he had complied with these requirements, having worked for his employer for more than three years and then he applied for his visa;

   c)he has done all that was required of him to meet the requirements for the visa;

   d)to the extent that the employer’s nomination was not approved, the applicant should have been given an opportunity to find another ‘sponsor’ before his application was refused;

   e)the applicant could not have done anything to ensure that the employer’s nomination was accepted, to the extent that the business failed to meet the necessary requirements for nomination, this ought not have the consequence of the applicant’s application being dismissed;

   f)the applicant seeks to make a distinction between things that were in his power and control to influence and things which were not, to the extent that the tribunal had regard to the latter, the applicant argues that this ought not be used as a basis for the refusal of his visa;

   g)the applicant asserted in his oral submissions that there were one or two occasions where the department sent correspondence to his migration agent and the migration agent did not provide those to him. Had they been provided, the applicant says he would have taken the opportunity to provide further documents; and

   h)the applicant did all that he could to ensure that the visa requirements were satisfied and that if ultimately the company was ‘blacklisted’ that should not affect the decision to grant him a visa.

10. Counsel for the Minister relied upon the written submissions filed on 20 May 2019. In addition, in response to the oral submissions, counsel for the Minister made the following further submissions:

    a)To the extent that the applicant argues that he should have been given the opportunity to get another sponsor, this argument is misconceived. In support of this argument, the Minister relied upon the decision of the Federal Court in Singh v Minister for Immigration and Border Protection & Anor [2017] FCAFC 105 (“Singh”).

    a)To the extent that the applicant says that he was not aware of correspondence sent to his representative by the delegate, even if this is correct, the applicant sought a review of the delegate’s decision such that any error on the part of the delegate was able to be cured on review. Moreover, it was submitted that even if there was negligence on the part of the migration agent, that would not give rise to jurisdictional error on the part of the tribunal. In addition, because the applicant was not able to meet the time of review criterion, it would in any event be futile to grant the relief sought in this case.

11. At the conclusion of the Minister’s oral submissions, when invited to make any submission in reply, the applicant sought an adjournment of the proceedings to allow him to obtain legal advice. The applicant indicated that he had not been able to obtain legal representation to date because of the costs involved. This application was opposed by the Minister.

12. I declined to grant the applicant’s application for an adjournment. The applicant has been on notice of the hearing of this matter since September 2018. The application itself has been on foot since December 2017. I am not satisfied that the interests of justice required that an adjournment be granted today.

13. In reply, the applicant said that he would like the opportunity to get a ‘good sponsor’ so that he can fulfil the requirements for the visa application.

Grounds one and two

1. The first ground of review is:

   The decision maker failed to apply the rules of procedural fairness.[13]

   [13] The applicant’s application filed 22 December 2017.

2. Ground two is:

   There was unfairness and failure to take into consideration that the Applicant satisfied the 457 criteria and completed more than 2  years employment, prior to applying for the 186 application.[14]

   [14] The applicant’s application filed 22 December 2017.

3. As is evident from the summary set out above, the tribunal did comply with its procedural fairness obligations as contained in section 359 of the Act. The tribunal invited the applicant to comment on information which, if accepted, would be the reason or part of the reason for affirming the delegate’s decision. The tribunal sent that invitation to the applicant’s nominated representative, providing the prescribed period of time in which to respond. No response was received, nor was any attempt made to seek more time or to explain the failure to respond.

4. In those circumstances, the tribunal was entitled to make a decision without taking further action to obtain the applicant’s views.[15]

   [15] Migration Act 1958 (Cth), s. 359C(2).

5. Notwithstanding this, it is evident from the tribunal’s reasons that it considered whether it ought to adjourn the review, which it had the power to do under section 363(1)(b) of the Act to allow the applicant more time to provide evidence in support of his application.

6. Whilst section 360(1) of the Act requires the tribunal to invite an applicant to appear and give evidence relating to the issues before it on review, section 360(2) of the Act makes it clear that this did not apply in this case. Section 360(3) makes it clear that where any of the paragraphs in 360(2) of the Act apply, the applicant is not entitled to appear before the tribunal. In this case, section 360(2)(c) of the Act applies.

7. I therefore find that there is no proper basis on which it can be said that the tribunal failed to afford the applicant procedural fairness.

1. This is particularly so, having regard to the fact that the tribunal also went on to consider whether to exercise its power to adjourn the review to allow the applicant more time. In doing so, it had regard to the relevant considerations in this matter, including:

   a)the fact that the applicant had been on notice of the central issue in this matter since having received the delegate’s decision record on or about 6 September 2016; and

   b)the likely impact on the applicant if the delegate’s decision to refuse the visa was upheld and noted that there was nothing preventing him from reapplying once the department approved a nomination by his prospective employer.

2. The tribunal concluded that the applicant had been allowed sufficient time ‘to address the central issue arising in the application for review’[16] and decided not to exercise its discretion to adjourn the review. 

   [16] Court book page 107 at paragraph [15].

3. The tribunal’s reasons and conclusions reached were reasonably open to it.

4. To the extent that ground two argues that the tribunal failed to take into account that the applicant had completed two years working prior to making an application for a visa, it is argued on behalf of the Minister that this reflects a misunderstanding of the criteria to which the tribunal was required to have regard.

5. This submission was also pressed in the applicant’s oral submissions to the Court. 

6. The applicant’s work history was not a relevant consideration. The key consideration in this instance was the requirement that the Minister had approved the nomination. It is not disputed that the nomination in this instance was not approved. Moreover, it is not in dispute that the decision not to approve the nomination was itself the subject of a review application to the tribunal, which was rejected; that is, the tribunal affirmed the delegate’s decision not to approve the nomination.

7. Neither ground one nor ground two discloses an arguable case of jurisdictional error.

Grounds three and five

1. Ground three is:

   That at the time of application for the 186 application, the applicant had complied with all requirements.[17]

   [17] The applicant’s application filed 22 December 2017.

2. Ground five is:

   That by the time the nomination was refused the applicant had satisfied all the requirements for the 457 and 186 application and therefore should not have be disadvantage because of the nomination being refused. The applicant had satisfied the work requirements and provided all documents in support.[18]

   [18] The applicant’s application filed 22 December 2017.

3. I will deal with these grounds collectively as they each go to the same issue; namely, the applicant complains about the decision to refuse him a visa in circumstances where he says that he had done all that was within his power to comply with the requirements for a visa and it would be unfair to refuse the visa on the basis of something which his sponsor had done or failed to do.

4. These grounds misunderstand the relevant criteria which the applicant needed to satisfy for a visa to have been issued. As stated previously, one of the criteria that is required to be satisfied is that the Minister had approved the nomination.

5. The nomination process under regulation 5.19 of the Regulations requires the nominator to apply to the Minister for approval of the nomination of a position in Australia. There are various requirements for approval which are set out in regulation 5.19 of the Regulations and, if those requirements are met, the Minister must approve the nomination. Alternatively, if the requirements are not met, the Minister must not approve the nomination. [19]

   [19] Migration Regulations 1994 (Cth) r. 5.19(3)

6. As stated above, one of the criteria for approval of the TRT stream is that the Minister has approved the nomination. Whether this has occurred is a factual question. The nomination either has or has not been approved. It is not relevant whether or not the applicant has complied with any requirements made of him.[20]

   [20] Singh v Minister for Immigration & Anor [2017] FCAFC 105 at [88].

7. The applicant does not take issue with the fact that the nomination was not approved by the Minister. Indeed, in this case, the nominator sought a review by the tribunal of the decision not to approve the nomination and that too was unsuccessful. 

8. In those circumstances and for these reasons, grounds three and five do not raise an arguable case of jurisdictional error.

Ground four

1. Ground four is:

   The applicant visa was refused by the department because the Department claimed that the applicant did not meet cl 186.223. The department has made an error as at the time the applicant satisfied all his 457 and 189 requirements prior to the nomination being cancelled.[21]

   [21] The applicant’s application filed 22 December 2017.

2. To the extent that this ground relates to a decision of the delegate, this is not a matter properly before this court. As correctly pointed out by the Minister, this court does not have power to review the decision made by the delegate. 

3. To the extent that this is merely an extension of the matters raised in grounds three and five, for the same reasons set out above, it too must fail.

4. Ground four therefore does not raise an arguable case of jurisdictional error.

Grounds six and seven

1. Ground six is:

   Further the nomination being refused was a direct consequence of the conduct of the nominator Zoom Auto Services Pty Ltd, which conduct is outside the control of the applicant.[22]

   [22] The applicant’s application filed 22 December 2017.

2. Ground seven is:

   It can not be the intend (sic) of the regulations to deprive the applicant his rights where he has satisfied all conditions save for the conduct of the nominator which he has no control over.[23]

   [23] The applicant’s application filed 22 December 2017.

3. Grounds six and seven essentially argue that to the extent that the nomination by Zoom Auto Services Pty Ltd was unsuccessful, this was not a result of the applicant’s actions and therefore the applicant ought not be deprived of his rights in circumstances where he had done all that was required of him.

4. The applicant reiterated this position in court when invited to make submissions in support of his application.

5. To the extent that this ground seeks to argue that the tribunal failed to take into account the fact that the applicant had done all that was required of him, it misunderstands the criteria which must be satisfied for a visa to issue under clause 187.223 of the Regulations, namely that the Minister has approved the nomination. If, as in this case, the Minister has not approved the nomination by Zoom Auto Services Pty Ltd, for whatever reason, the criteria is not met and a visa cannot issue.

6. To the extent that these grounds are seeking a review of the Minister’s decision not to approve the nomination, as correctly pointed out by the Minister’s representative, that is not a matter properly before this court.  Indeed, it is noted that the decision of the Minister’s delegate not to approve the nomination by Zoom Auto Services Pty Ltd was itself the subject of an application to the tribunal at which it was affirmed.

7. For these reasons, grounds six and seven do not raise an arguable case of jurisdictional error.

Ground eight

1. Ground eight is:

   There was a failure to consider errors and correctness in the interpretation and construction of the facts.[24]

   [24] The applicant’s application filed 22 December 2017.

2. It is not clear from the application what this ground refers to. To the extent that it is a reference to the matters referred to in grounds one to seven, then for the reasons set out above, this ground does not give rise to any arguable case of jurisdictional error. 

3. Moreover, the only issue before the tribunal was whether or not the applicant was the subject of an approved nomination under clause 186.223 of the Regulations. The facts, which are not in dispute, were that the Minister had not approved the nomination.

4. This ground does not give rise to any arguable case of jurisdictional error.

Ground nine

1. Ground nine is:

   There was an error in law in that all relevant considerations were not taken into account.[25]

   [25] The applicant’s application filed 22 December 2017.

2. The applicant does not particularise what relevant considerations were not taken into account. 

3. In any event, for the reasons set out in paragraph 75 above, this ground does not give rise to an arguable case of jurisdictional error.

4. The tribunal had regard to the fact that the nomination had not been approved and in those circumstances, the criteria in clause 186.223 of the Regulations was not satisfied.

Other matters

1. Any suggestion that the applicant should have been given the opportunity to obtain another sponsor is misconceived. As noted in Singh by Mortimer J, with whom Jagot and Bromberg JJ agreed:

   The structure of reg 5.19 contemplates … that the Minister is obliged to either accept or reject the nomination, depending on whether the matters in the sub-regulation are satisfied… this contemplates an assessment by the Minister at a particular point in time.  Thereafter, the only variation to this assessment contemplated by the scheme is reviewed by (now) the Administrative Appeals Tribunal.  … It does not contemplate that an employer can file repeated nomination applications in relation to the same visa application and the same visa applicant.[26]

   The scheme intends it to be a ‘once off’ process, so that the visa application is considered against a specific employer nomination and a specific approval of that nomination by the Minister (or his delegate).

   [26] Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [89].

2. I agree with the submissions made on behalf of the Minister that even if one were to accept that the applicant was not aware of correspondence sent to his representative by the delegate, the applicant sought a review of the delegate’s decision such that any error on the part of the delegate was able to be cured on review. 

3. Finally, for the reasons set out in the Full Court decision in Singh[27], given that it is not in dispute that the nomination filed by Zoom Auto Service Pty Ltd was not approved by the Minister, there would be no utility in remitting this matter to the tribunal, even if there was evidence that its decision was affected by jurisdictional error.

   [27]Singh v Minister for Immigration & Border Protection [2017] FCAFC 105.

4. The question before the tribunal is whether or not the criteria in clause 186.223 of the Regulations was met. In this case, the requirement that the nomination by the applicant’s employer be approved was not met. Indeed, not only was it not met at the time that the delegate made his decision in the applicant’s case, but by the time the applicant’s application for review came before the tribunal, the employer had sought a review of the decision not to approve its nomination and that review was also determined, affirming the delegate’s decision below. On the basis of the evidence before this court, there does not appear to have been any application for judicial review of the tribunal’s decision in relation to the nomination approval process.

5. In those circumstances, there could be only one conclusion reached in the present applicant’s application; namely, a finding that the criteria in clause 186.223 of the Regulations was not met. 

6. There is no utility in sending this matter back to the tribunal where that is the outcome.

7. The fact that at some point in the future, a further nomination by that same employer, or indeed by another employer, might be approved, is not relevant and could not alter that outcome.

Conclusion

1. As noted by Judge Whelan in MZAJQ v Minister for Immigration & Anor [2015] FCCA 593 (“MZAJQ”) at [13] and Judge Smith in SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [10], the Court’s power under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) is in the form of summary dismissal. Moreover, such a power ought to be exercised with caution.

2. As noted by French CJ and Gummow J in Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 (“Spencer”) at [24]:

   The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process…

   More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow , Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following…:

   [57]…Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (emphasis added). [28]

   [28] Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at [24].

3. Even where the court is satisfied that there is no arguable case, it still must consider whether to exercise its residual discretion as to whether or not to dismiss the application.[29]

   [29] Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328 at [19].

4. I have had regard to the fact that:

   a)although the applicant represented himself before this court, he did have the opportunity to amend his application and file written submissions, but chose not to do so; and

   b)as noted in SZUTB:

   …the objects of the (Federal Circuit Court Rules) include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay, expense and technicality (and)… this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.[30]

   [30] SZUTB v Minister for Immigration and Border Protection & Anor [2015] FCCA 1383 at [18].

5. These factors, together with the findings I have made regarding the absence of an arguable case arising from the applicant’s grounds of review, and the conclusions I have reached with respect to the futility of any order remitting the matter to the tribunal in any event, lead me to conclude that it is appropriate in this case to exercise the Court’s discretion and dismiss the applicant’s application.

6. I therefore find that this application ought to be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and that the applicant pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Date: 13 June 2019