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

[2021] FCCA 2125

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2125 

File number(s):

SYG 482 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Regional Employer Nomination Subclass 187 Visa – where the applicant failed to appear before the Tribunal – whether the applicant had an approved nomination – no arguable case for the relief claimed – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth)

Legislation:

Federal Circuit Court rules 2001 (Cth) r 44.12

Migration Act 1958 (Cth) s 476

Migration Regulations 1994 (Cth) sch 2, cl 187.233

Number of paragraphs:

18

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicant:

In person

Solicitor for the respondent:

Ms A Wang

ORDERS

SYG 482 of 2019

BETWEEN:

DALJIT SINGH

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:	18 AUGUST 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3.The 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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 22 February 2019, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Regional Employer Nomination Subclass 187 Visa (“the Visa”).

   Background

2. The applicant is a citizen of India, and applied for the Visa on 4 September 2017.

3. On 10 May 2018, the delegate refused the grant of the Visa, because the applicant did not have an approved nomination, and accordingly, did not meet cl 187.233 of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). 

4. On 24 May 2018, the applicant applied to the Tribunal for a review.

5. On 13 December 2018, the Tribunal wrote to the applicant, explaining that there was not an approved nomination, and requested further information. There was no response by the applicant.

6. On 24 January 2019, the Tribunal wrote to the applicant, inviting him to a hearing on 22 February 2019.

7. On 22 February 2019, the applicant did not appear before the Tribunal. The Tribunal identified that there was no approved nomination before the Tribunal, and referred to the correspondence sent to the applicant inviting him to comment on the want of an approved nomination. The Tribunal found that there was not an approved nomination, and that the applicant did not meet the criteria under cl 187.233 of the Regulations. The Tribunal therefore affirmed the decision under review. 

   Before the Court

8. These proceedings were commenced on 1 March 2019, and were fixed for a show cause hearing today, 18 August 2021.

9. At the commencement of the hearing, the Court explained to the applicant the nature of the show cause hearing. The applicant, whilst obviously wishing to maintain his case, did not advance any oral submissions in support of the three grounds in the application. The Court appreciates that the absence of an approved nomination may well have been outside the applicant’s control. Sadly, however, that does not identify any basis on which the Tribunal’s decision could be said to be the subject of error.

   The Grounds

10. The three grounds in the application are as follows:

    Ground 1

    1.THE TRIBUNAL MADE JURISDICTIONAL ERROR.

    Ground 2

    2.APPLICANT CLAIM HIS OCCUPATION IS NOMINATED POSITION BUT AAT DID NOT CONSIDER HIS APPLICATION AND REFUSED TO GRANT HIS VISA.

    Ground 3

    3.THE APPLICANT IS PROFESSIONAL SINGER AND MADE HIS APPLICANT HAS PER RULES AND REGULATION, DELEGATE AND AAT MADE MISTAKE AND DID NOT FOLLOW THE RULE.

    Ground 1

11. Without particulars, the first ground is incapable of identifying any arguable error. The Tribunal correctly identified that the applicant had to have an approved nomination. The need for an approved nomination was an issue on which the applicant was on notice, because of the delegate’s decision, and because of the correspondence in front of the Tribunal.

12. No arguable case of relevant error is disclosed by Ground 1. 

    Ground 2

13. In relation to Ground 2, the reasons why the nomination was not approved were not relevant to the Tribunal. As the applicant did not have an approved nomination before the Tribunal, he could not succeed.

14. No arguable case of relevant error was raised by Ground 2.

    Ground 3

15. Ground 3 reflects a general disagreement with the Tribunal’s decision. There is no rule or regulation that has been identified that the Tribunal did not comply with. No mistake has been identified in relation to the findings of the Tribunal that the applicant did not have an approved nomination.

16. No arguable case of relevant error is disclosed by Ground 3. 

17. 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 Federal Circuit Court Rules 2001 (Cth).

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

I certify that the preceding eighteen (18) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 18 August 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       6 October 2021