Sood v Minister for Immigration

[2020] FCCA 3504

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOOD v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3504

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Temporary Business Entry (Class UC) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal identified the relevant law – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), s.476

Migration Regulations 1994 (Cth), Sch. 2

Applicant: ASHISH SOOD

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 947 of 2020

Judgment of: Judge Street

Hearing date: 21 December 2020

Date of Last Submission: 21 December 2020

Delivered at: Sydney

Delivered on: 21 December 2020

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Solicitors for the Applicant: Mr C Burke, Sparke Helmore, Microsoft Teams

ORDERS

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

2. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 21 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 947 of 2020

ASHISH SOOD

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 April 2020 affirming a decision of a delegate of the first respondent (“the Delegate”) not to the grant the applicant a Temporary Business Entry (Class UC) visa (“the Visa”).

2. The applicant is a citizen of India and applied for the Visa on 6 January 2017. The Visa was refused by the Delegate, even though the applicant provided a new nomination, because he did not meet the requirements of the criteria in clause 457.223(4)(a) of Sch 2 to the Migration Regulations 1994 (Cth). The new nomination lodged by the applicant could not be linked to the application for the Visa made by the applicant.

3. The Tribunal wrote to the applicant and informed the applicant that the applicant did not meet the essential criteria, being an approved nomination. 

4. In those circumstances, the applicant failed to respond to the Tribunal’s letter and the Tribunal found that the applicant failed to meet the criteria for the grant of the Visa.

Before the Court

1. These proceedings were commenced on 21 April 2020. 

The grounds

1. The grounds in the application are as follows: 

   1.   APPLICANTS CLAIM THAT THE ADMINISTRATIVE APPEAL TRIBUNAL MADE JURISDICTIONAL ERROR WHEN IT DID NOT CONSIDER THE APPEAL FROM APPLICANT TO CONSIDER ON THE COMPASSIONATE REASON.

   2.   AAT DID NOT INFORM ME THAT MY EMPLOYER WITHDRAWS MY APPLICATION.

   3.   MY APPLICATION WAS NOT ASSES BY THE LAW. THERE IS LEGAL ERROR ON IT. I AM NOT LAWYER SO I DO NOT KNOW BUT I APPEAL TO HONOURABLE COURT PLEASE GIVE ME JUSTICE.

   4.   MY EMPLOYER CHEATED ME AND HE WITHOUT MY CONSENT HE WITHDRAW MY NOMINATION.

Ground 1

1. Ground 1 asserts that the Tribunal should have considered compassionate reasons. There was no such criteria that the Tribunal was required to consider when the applicant did not have an approved nomination. 

2. No arguable case of relevant error is disclosed by ground 1. 

Ground 2

1. Ground 2 complains in relation to what the applicant’s employer has told him and does not identify any arguable case of relevant error. 

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant law and that the approved nomination was an essential criteria for the applicant to succeed. 

2. No arguable case of relevant error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicant complains about being cheated by his employer, but this does not identify any arguable case of relevant error by the Tribunal. 

2. The Court is satisfied that the application has not raised an arguable case for the relief claimed. 

3. The Court is satisfied 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).

I certify that the preceding fourteen (14) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 11 February 2021