Vij v Minister for Home Affairs

[2019] FCCA 3691

FEDERAL CIRCUIT COURT OF AUSTRALIA

VIJ v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 3691

Catchwords:
MIGRATION – Judicial review – where the applicant’s application for visa did not satisfy a mandatory condition – where the applicant alleges “unfairness” in relation to a decision of the Administrative Appeals Tribunal – where jurisdictional error is not established – application dismissed.

Legislation:

Migration Regulations 1994 (Cth)

Applicant: AJAY VIJ

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 536 of 2017

Judgment of: Judge Young

Hearing date: 25 November 2019

Date of Last Submission: 25 November 2019

Delivered at: Darwin

Delivered on: 25 November 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr Rettalick

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr Rettalick

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The application filed 22 December 2017 be dismissed.

2. That the applicant pay the first respondent’s costs fixed at $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 536 of 2017

AJAY VIJ

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 4 December 2017 affirming a decision of the delegate made on 4 October 2016 to refuse the applicant a subclass 167 regional sponsored migration scheme visa.

3. The type of visa that the applicant sought has a mandatory condition. The requirements are set out in clause 187.223 of the Migration Regulations which, in summary, requires that the applicant for the visa have an approved nomination from an employer. In ordinary language it means that where an employer is sponsoring an employee, that sponsorship, or “nomination” has to have been approved by the Minister.

4. On 7 September 2016 the application for nomination by the applicant’s proposed employer, Mr Mexican SA Pty Ltd, was refused. On 14 October 2016 the delegate refused the applicant’s application for the visa based on the fact that he had no evidence of an approved nomination of an employer, the nomination being refused the month before. The ground for the refusal by the delegate of the employer’s nomination appears, from the materials in the Court Book, to have been that the Minister was not satisfied that the position for which the applicant was nominated, that is, as a chef, was a genuine position. There was some indication in the correspondence that the delegate was not satisfied that the applicant would be genuinely working in a chef’s position with the managerial responsibilities that were associated with the definition of that position.

5. Both the nominating employer, Mr Mexican SA Pty Ltd, and the applicant sought review of those decisions by the Tribunal. On 21 September 2017, the Tribunal conducted a combined hearing of those applications. Mr Mexican Pty Ltd was present through Mr Vartak, its apparent director, and the applicant was represented by his migration agent at the hearing. The Tribunal had invited comment from the applicant on some anonymous information it had received about him prior to the hearing. After the hearing the applicant was invited to respond to that information in a letter dated 10 October 2017.

6. The information was:

   Ajay Vij has paid $25,000 for this RSMS [regional sponsored migration scheme] visa to Little Mexico…

   I interpolate there that that is the name of the restaurant that Mr Mexico SA Pty Ltd operated.

   …restaurant owner, and will be paying another $25,000 after visa come [sic: came]. Money has been deposited from Melbourne to Little Mexico (Aldinga) account, when Ajay Vij was driving cab in Melbourne. He is only working three nights’ shift at restaurant, free of cost, and showing fake salary to immigration. He is working full-time at SA Mushrooms, and has not even declared his first job in tax papers. Ajay Vij is trying to fool the Immigration Department.

7. The submissions from Mr Vij in response, as I read them, to that, while denying that he had acted fraudulently, conceded that he had paid the restaurant owner or previous owner, apparently not Mr Vartak, but someone else, $14,600. Mr Vij in his submission said that was actually paid to the previous owner of the restaurant for lawyers’ fees of $7,000; visa fees of $3,600; and a car for $4,000, which adds up to $14,600. The submission said that the employer was organising the lawyer and the visa fees and that Mr Vij also instructed the employer to buy a car for him. He said that those things didn’t happen and, as I understand his submission, the money was sent back to him.

8. He also said that he had been employed by SA Mushrooms Pty Ltd and provided payslips for a period from July to August 2017. According to the payslips, Mr Vij was employed for somewhere between (the hours vary) from 26.25 to 37.25 hours a week. In July it appears that he was, judging by his payslips from Mr Mexican Pty Ltd, employed 38 hours a week as a chef in the restaurant around the same time.

9. The Tribunal made no findings about those matters because it did not have to make any findings. It may have been that in the combined hearing the Tribunal was more interested in what Mr Vartak had to say but it is unclear from the Tribunal’s reasons. The Tribunal refused to overturn the delegate’s decision in relation to the employer nomination and it followed automatically that Mr Vij’s application must fail. The proposed employer, Mr Mexico SA Pty Ltd has not challenged the decision. The fact remains that Mr Vij still has no approved nomination and accordingly does not satisfy one of the mandatory criteria for the grant of the visa. That is the only ground addressed in the reasons of the Tribunal.

10. In his application to this Court, Mr Vij sets out a number of complaints about the Tribunal decision. They are not professionally drafted and are expressed in reasonably simple terms. Mr Vij says that during the hearing in front of the Tribunal his employer became confused and didn’t explain things properly. He complains that he, that is, Mr Vij, shouldn’t have to suffer because his employer became confused during the hearing. Mr Vij said, in substance, that it is unjust that he has done everything legally and he should be refused a visa because of the “false evidence”, as he called it, submitted by an anonymous informer, as well as the confusion of his employer during the hearing.

11. On a judicial review application, the applicant has to point to some significant or serious error that means the Tribunal has not undertaken its statutory task or has undertaken it imperfectly. Mr Vij has been unable to point to anything that would fit the description of jurisdictional error and in the circumstances of the Tribunal’s failure to provide a different decision about the employer’s nomination it followed that Mr Vij’s application must fail. Even if there were error, in those circumstances, in the absence of an approved nomination, there would be no point in sending the matter back to the Tribunal for another hearing because the outcome would be exactly the same.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  17 December 2019