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

[2021] FCCA 1832

FEDERAL CIRCUIT COURT OF AUSTRALIA

Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1832

File number(s):

BRG 378 of 2020

Judgment of:

JUDGE JARRETT

Date of judgment:

23 July 2021

Catchwords:

MIGRATION – Judicial review – Employer Nomination (class EN) (subclass 186) visa – no appearance at Tribunal hearing – application dismissed – no application to reinstate – application futile – no employer nomination – no jurisdictional error – dismissed.

Legislation:

Migration Act 1958 (Cth) s 362B(1A)(b)

Migration Regulations1994 (Cth) reg 186.223(2)

Number of paragraphs:

17

Date of last submission/s:

23 July 2021

Date of hearing:

23 July 2021

Place:

Brisbane

The Applicants:

In person

Solicitor for the Respondents:

Minter Ellison Lawyers

ORDERS

BRG 378 of 2020

BETWEEN:

AMRIT PAL SINGH

First Applicant

HARPREET KAUR

Second Applicant

JASMAN SINGH SHERGILL

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	23 JULY 2021

THE COURT ORDERS THAT:

1.The application filed on 2 July, 2020 be dismissed.

2.The first applicant pay the first respondent’s costs of the application fixed in the sum of $3,737.

REASONS FOR JUDGMENT

JUDGE JARRETT:

1. This is an application for judicial review of a decision of the second respondent made on 29 May, 2020.  On that occasion, the second respondent confirmed the decision that it had earlier made to dismiss an application for review brought by the applicants before me now to review a decision of a delegate of the first respondent not to grant them an Employer Nomination (class EN) (subclass 186) visa.  The second respondent’s decision was made because the applicants failed to engage in the review application and appear before the second respondent.

2. The factual background to the application is set out in the written submissions filed by the first respondent and I have drawn from those written submissions for the purposes of these reasons.  What appears in those submissions and, consequently, what appears in these reasons is, as far as I can tell having regard to the material in the court book, accurate.

3. The applicants first applied for their visa on 26 October, 2016.  The first applicant before me was the primary applicant for the visa and the other applicants were nominated as part of the applicant’s family unit.  There was an employer that nominated the applicant for the purposes of his visa application.  On 19 September, 2017, the applicant was asked to comment on some advice received from the first respondent’s department that the nomination to which his visa application related had been refused.  The effect of that, of course, was that his visa application could not succeed because it was dependent upon there being a nomination in place for him.

4. There was no response to the request for information and so, on 13 November, 2017 a delegate of the first respondent refused to grant the application the visa for which he applied.  The delegate’s decision was made on the basis that the applicant was not the subject of an approved nomination, as required by the Migration Regulations 1994 (Cth) and reg.186.223(2), in particular.

5. Soon thereafter, on 4 December, 2017 the applicant sought review of the delegate’s decision before the second respondent.  On 11 February, 2020 the second respondent invited the applicant to attend a hearing on 27 March, 2020.  It was not satisfied it could grant a visa on the material before it and so he was asked to give evidence and present arguments in support of his application. 

6. As the first respondent points out, the invitation to attend the hearing carried with it a notice that clearly set out the consequences of failing to attend the hearing.  There was also the usual information accompanying the invitation about what to do and how to prepare for the hearing.  That document, described in the material as the MR18 form, also set out the consequences of a failure to appear at the hearing.

7. As is usual, a response to a hearing invitation form was sent to the applicant along with the invitation to appear.  That form required him to complete it and send it back to the second respondent.  However, there was no response from him and he did not return the response to hearing invitation form.  On 23 March, 2020 the second respondent wrote to the applicant to confirm that the hearing was going to proceed by telephone and he was again asked to return the response to hearing invitation form and to advise the Tribunal if his phone number had changed.  There was no response.

8. On 1 April, 2020 the second respondent invited the applicant to attend a rescheduled hearing on 17 April that year.  Some further information was given to him and a request to return the relevant form indicating his response to the hearing invitation was again made, but there was no response to any of that either. 

9. On 8 April, 2020 and again on 16 April, 2020 the second respondent sent two SMS text message reminders to the applicant’s nominated telephone number to remind him of the hearing date. 

10. The correspondence to which I have referred was all sent to the addresses nominated by the applicant at which he would receive notifications from the second respondent.

11. At the hearing on 17 April, 2020, there was no appearance by the applicant. On 24 April, the second respondent dismissed the application by reason of the applicant’s nonappearance and in doing so relied upon s.362B(1A)(b), of the Migration Act 1958 (Cth). It notified the applicant at his address for service of its decision to dismiss his application on 27 April, 2020. He was given the usual information about his right to apply to seek reinstatement of his review application and he was given the usual information about the dismissal of his application. He was warned again about the consequences of failing to apply for reinstatement and taking action in respect of his application.

12. However, there was no application for reinstatement by the applicant.  And so, unremarkably, on 29 May, 2020 the second respondent confirmed its decision to dismiss the application.  It is that decision in respect of which the applicant now seeks judicial review.

13. The application filed in this court before me sets out, in the section for the grounds of the application, five paragraphs.  Each of those paragraphs deals with the applicant’s employment with the employer who was originally to sponsor him, Pravin & Divayli Bhatnagar.  Those paragraphs – in fact, the first paragraph correctly acknowledges that the 186 nomination was refused on a certain basis set out in paragraph (1) of the grounds of application.  The balance of the grounds (2), (3), (4) and (5) seem to go on to remonstrate with the decision to refuse the nomination.  None of the grounds take issue with the approach of the second respondent in respect of the dismissal decision which is now the subject of the review before me.

14. During the course of oral submissions today, I asked the applicant if he could articulate a basis upon which it might be said that the second respondent’s decision to dismiss his application was wrong, but apart from saying that there were some notifications that he did not receive, an assertion made by him without any evidence, no basis, proper or otherwise, was suggested as a reason to impugn the second respondent’s decision. 

15. There is no suggestion on the material before me that the second respondent’s decision was erroneous, let alone affected by jurisdictional error.  To the extent that the application for review seeks review of the dismissal decision to which I have referred, it does not establish jurisdictional error on the part of the second respondent, and it must be dismissed.

16. There is a second reason for dismissing the application, as the first respondent points out, and that is futility.  Even if I was minded to find that the second respondent’s dismissal decision was affected by jurisdictional error, there would be no point in setting that decision aside or quashing it and sending the matter back to the Tribunal, because the applicant’s visa application could not succeed.  There is no employer nomination necessary to support the grant of the visa.  In those circumstances, the application is dismissed.

    RECORDED   :   NOT TRANSCRIBED

17. Costs should follow the event.  The applicant has been unsuccessful.  The applicant should pay the first respondent’s costs of and incidental to the application filed on 2 July, 2020, fixed in the sum of $3,737.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 23 July, 2021.

Associate:

Dated:       9 August, 2021