Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2094
•17 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2094
File number(s): SYG 61 of 2019 Judgment of: JUDGE STREET Date of judgment: 17 August 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – application for Regional Employer Nomination (Permanent) (Class RM) Visas – where the applicants did not have 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: Migration Act 1958 (Cth) ss 359A, 476
Migration Regulations 1994 (Cth) cl 187.233
Federal Circuit Court Rules 2001 (Cth) r 44.12
Number of paragraphs: 18 Date of hearing: 17 August 2021 Place: Sydney Solicitor for the applicant: First applicant, in person Solicitor for the respondent: Mr M Gao, Australian Government Solicitor ORDERS
SYG 61 of 2019 BETWEEN: RUPINDER SINGH
First Applicant
ROOP RAJ KAUR
Second Applicant
TARANPREET KAUR (and another named in the Schedule)
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 applicants pay the first respondent’s costs fixed in the amount of $3,300.00.
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
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 20 December 2018, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants’ Regional Employer Nomination (Permanent) (Class RM) Visas (“the Visas”).
BACKGROUND
The applicants are citizens of India. The first and second applicants are husband and wife. The third and fourth applicants are children of the first two applicants, in respect of whom there has been a litigation guardian order made.
On 8 May 2008, the first applicant arrived in Australia. The second and third applicants arrived in Australia on 26 August 2012. The fourth applicant was born in Australia in 2013.
On 8 December 2015, the applicants applied for the Visas. On 3 February 2017, the delegate refused the applicants’ application for the Visas.
On 15 February 2017, the applicants applied to the Tribunal for review. On 22 November 2018, the applicants attended a hearing before the Tribunal to give evidence and present arguments.
On 30 November 2018, the Tribunal wrote to the applicants, explaining that there was not an approved nomination, and the applicants were asked to provide any relevant evidence by 14 December 2018. No response was received. Accordingly, on 21 December 2018, the Tribunal affirmed the decision of the delegate under review.
The Tribunal found that the first applicant was not the subject of an approved nomination and, accordingly, did not satisfy cl 187.233 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal also noted that the information as to the want of an approved nomination was put to the applicants pursuant to s 359A of the Act, and that the applicants were given an opportunity to respond but did not do so. It was in those circumstances that the Tribunal affirmed the delegate’s decision.
BEFORE THE COURT
These proceedings were commenced on 11 January 2019, and were fixed for a show cause hearing today, 17 August 2021.
At the commencement of the hearing, the Court explained to the first applicant the nature of the show cause hearing. The first applicant sought to explain the errors that had been made in the consideration of whether the nominated position should be approved.
Sadly, whether there was an error in respect of the nomination approval is not an issue before this Court, or an issue that raises an arguable case where there are no proceedings on foot relating to the refused approval of the nomination.
The first applicant’s submissions otherwise identified his personal circumstances, the hardship he has faced, and the contribution he has made in the period that he has worked for the relevant company. This Court has no power to determine the matter on compassionate or discretionary grounds. In substance, the first applicant’s submissions invited impermissible merits review and did not identify an arguable case for the relief claimed.
THE GROUND
The Ground in the originating application is as follows:
Jurisdictional Error as Tribunal did not consider all the facts
CONSIDERATION
Without particulars, the Ground is patently incapable of identifying an arguable case of relevant error. The Tribunal did identify the relevant issue in respect of whether the first applicant had an approved nomination. The first applicant did not. In those circumstances, where the issue had been raised with the applicants by the Tribunal in accordance with s 359A of the Act, the applicants could not succeed. No arguable case of relevant error is disclosed by the Ground in the application.
The first applicant has also filed an affidavit in which he has annexed some of the circumstances which he says are of concern in relation to the refusal to approve the nomination. None of the matters that the first applicant has raised identify any basis to find that the Tribunal exceeded its statutory powers in the conduct of the review of the applicants’ application.
The issues that the first applicant has focused upon appear to identify matters relating to the circumstances as to the refusal to approve the nomination. None of that engages any arguable error in respect of the current Tribunal’s decision, nor do the issues referred to in the transcript assist the first applicant in that regard.
The affidavit does not advance the case of there being an arguable ground of relevant error in relation to the Tribunal’s adverse decision. The Court also accepts the first respondent’s submission that, given the absence of an approved nomination or proceedings on foot, it would be futile to grant any relief.
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).
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 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
SCHEDULE OF PARTIES
SYG 61 of 2019 Applicants
Fourth Applicant:
SAMARVIR SINGH
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