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

[2021] FCCA 2118

FEDERAL CIRCUIT COURT OF AUSTRALIA

Vaghela v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2118

File number(s):

SYG 2039 of 2020

Judgment of:

JUDGE STREET

Date of judgment:

18 August 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for Employer Nomination (Subclass 186) Visas – where the applicants did not have an approved nomination – application in a case for an adjournment – application refused – where the applicants submissions invited impermissible merits review – 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) sch 2; cls 186.223, 186.223(2)

Federal Circuit Court Rules 2001 (Cth) r 44.12

Number of paragraphs:

18

Date of hearing:

18 August 2021

Place:

Sydney

Solicitor for the applicants:

First applicant, in person

Solicitor for the first respondent:

Mr A Taverniti, Sparke Helmore

ORDERS

SYG 2039 of 2020

BETWEEN:

DARSHANA BHARATSING VAGHELA

First Applicant

ANANDSINH GAJUBHA JHALA

Second 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 application in a case seeking an adjournment is dismissed.

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

3.The applicants 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 Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 5 August 2020, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Employer Nomination (Subclass 186) Visas (“the Visas”).

   Background

2. The applicants are citizens of India. The second applicant is the partner of the first applicant.

3. On 17 November 2016, the applicants applied for the Visas.

4. On 22 June 2017, the delegate refused the Visas because the applicants did not have an approved nomination and, accordingly, could not meet the criteria under cl 186.223(2) of sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

5. On 6 July 2017, the applicants applied to the Tribunal for review. On 29 April 2020, the Tribunal invited the applicants to comment on information that the nominator had withdrawn their application. On 17 June 2020, the applicants attended a hearing before the Tribunal.

6. On 5 August 2020, the Tribunal affirmed the decision of the delegate under review. The Tribunal noted that it raised with the applicants, under s 359A of the Act, that there was no approved nomination. The Tribunal found that the applicants did not meet the criteria under cl 186.223 of the Regulations, and affirmed the decision of the delegate under review.

   Before the Court

7. These proceedings were commenced on 28 August 2020. 

8. At the commencement of the hearing, the applicants sought an adjournment on the basis of an affidavit and an application in a case that had been filed on 18 August 2021. The affidavit identified the circumstances that the applicants were currently going through, that they wanted to consult a migration agent and that they wanted further time to obtain further documents.

9. Given that these proceedings were commenced on 28 August 2020, the applicants have had ample time to obtain any relevant documents. Sadly for the applicants, the applicants’ desire to obtain further information also does not identify a proper basis for an adjournment because the Court is not in a position to make fresh findings in respect of the want of an approved nomination. The Court cannot receive, after the Tribunal’s decision, a separate and new approved nomination. There would be no utility in granting an adjournment in those circumstances.

10. The Court is not satisfied that there is any medical condition that prevents the first applicant from meaningfully participating in the hearing. The first applicant’s response to the Court in the course of the hearing is consistent with the first applicant being able to meaningfully participate in the hearing.

11. The Court has also taken into account the want of substantive merit in the substantive application, which raises no arguable case for the relief claimed. The adjournment was opposed by the first respondent, and it is for these reasons that the Court made an order dismissing the application in a case for an adjournment.

12. The applicants sought to raise issues in respect of their personal circumstances and desire to remain in Australia. The applicants submitted that it was not their fault and not their error that the position was that they did not have an approved nomination, all of which the Court accepts. 

13. Sadly, the reason why the applicants did not have an approved nomination was irrelevant. If they did not have a nomination before the Tribunal, in circumstances where the Tribunal raised the matter with the applicants in accordance with s 359A of the Act, the applicants simply could not succeed because they did not have the approved nomination.

14. Whosever error it was, whether the migration agent or otherwise, does not give rise to any arguable case for the relief claimed. Nothing said by the applicants identified an arguable case for the relief claimed.

    The Ground

15. The Ground is as follows:

    The decision of the Tribunal involves Jurisdictional Error

16. Without particulars, the Ground is incapable of identifying any arguable case of relevant error. Further, in circumstances where the applicant did not have an approved nomination, the applicant could not succeed. The Court also accepts the first respondent’s submission that it would, in the circumstances where there was no approved nomination, be futile to remit the matter in any event. 

17. In these circumstances, the Court is not satisfied 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 settled 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