Vij v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 623
•1 June 2021
FEDERAL COURT OF AUSTRALIA
Vij v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 623
Appeal from: Vij v Minister for Home Affairs & Anor [2019] FCCA 3691 File number: SAD 274 of 2019 Judgment of: CHARLESWORTH J Date of judgment: 1 June 2021 Date of publication of reasons: 8 June 2021 Catchwords: MIGRATION – appellant applied for a Regional Employer Nomination visa – visa refused because the proposed employer’s nomination was not approved – Federal Circuit Court of Australia correct to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal affirming the visa refusal
PRACTICE AND PROCEDURE – single ground of appeal alleging a failure on the part of the primary judge to consider the appellant’s arguments – ground lacking in particulars – no appealable error established – appeal heard and determined in the appellant’s absence
Legislation: Migration Act 1958 (Cth) ss 65, 474
Federal Court Rules 2011 (Cth) r 36.75
Migration Regulations 1994 (Cth) cl 187.233
Cases cited: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 24 Date of hearing: 1 June 2021 Counsel for the Appellant: The Appellant did not appear Counsel for the First Respondent: Ms C Calabrese Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
SAD 274 of 2019 BETWEEN: AJAY VIJ
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
1 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent’s costs of an incidental to the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
On 1 June 2021 I made an order dismissing this appeal in the appellant’s absence. Oral reasons for dismissing the appeal were delivered on that day. This is a written record of those reasons, with some revision.
My reasons for proceeding in the appellant’s absence are given from [17] – [24] below.
The appellant, Mr Ajay Vij, is a citizen of India. He arrived in Australia in 2006 as the holder of a student visa. On 10 November 2015, the appellant applied for a Regional Employer Nomination (subclass 187) visa.
Subject to exceptions that need not be considered here, s 65(1)(a) of the Migration Act 1958 (Cth) provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act.
It was a criteria for the grant of that visa that the appellant’s proposed employer provide a nomination and that the nomination be approved by the Minister: Regulations, Sch 2, cl 187.233. I will refer to that as the nomination criterion.
The appellant’s proposed employer was Mr Mexican SA Pty Ltd (Mr Mexican). Its nomination was refused by a delegate of the Minister on 7 September 2016. On review the Administrative Appeals Tribunal affirmed the delegate’s decision not to approve the nomination.
The appellant’s visa was refused by a delegate of the Minister on 14 October 2016 on the basis that the appellant did not fulfil the nomination criterion (visa refusal decision).
On 17 October 2016, the appellant lodged an application with the Tribunal for review of the visa refusal decision. The Tribunal found that the appellant did not satisfy the nomination criterion because the nomination of Mr Mexican was not approved. As an essential criterion for the visa was not satisfied, the Tribunal affirmed the visa refusal decision.
On 22 December 2017, the appellant lodged an application for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia. On that application, the onus was on the appellant to show that the Tribunal’s decision to uphold the visa refusal decision was affected by jurisdictional error: ss 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ). The reasons of the primary judge refer to submissions made by the appellant concerning the earlier decision to refuse the Mr Mexican nomination. The appellant had submitted that the employer had become confused and had failed to explain things properly to the delegate and to the Tribunal.
The primary judge was not satisfied the appellant had demonstrated jurisdictional error on the part of the Tribunal. His Honour said that the appellant’s failure to demonstrate that there was an approved nomination meant that the application for judicial review must necessarily fail.
The appellant commenced an appeal to this Court by notice of appeal dated 16 December 2019. He is self-represented.
The appellant relies on a single ground of appeal. It asserts that the primary judge, “didn’t consider my arguments.” In the ordinary course, the Court will construe grounds of appeal drafted by an unrepresented litigant beneficially, especially if particulars of a generalised complaint can be ascertained from oral or written submissions.
The appellant was afforded an opportunity to file written submissions but he has not done so. In the circumstances explained below, he did not attend at the hearing of the appeal and has not elaborated on his ground of appeal in any other way.
It is not clear what arguments the appellant asserts were made at first instance that were not considered by the primary judge. The gist of the arguments he did make may be discerned from the originating application filed in the proceedings at first instance. Those grounds expressed dissatisfaction with the Tribunal’s decision, however the grounds do not identify any basis upon which it could be said that the Tribunal committed jurisdictional error by affirming the visa refusal decision by reason of the non-fulfilment of the nomination criterion.
The onus is on the appellant to satisfy the Court that the primary judge committed the appealable error asserted on his notice of appeal. On the limited material before me, that onus is not discharged. It is not apparent from the reasons for judgment published by the primary judge that there has been any failure to consider the arguments underpinning the grounds of judicial review. There is no basis to conclude that the primary judge committed appealable error in rejecting those grounds. The appeal is without merit.
I will now explain why I proceeded to hear and determine the appeal on its substantive merits in the appellant’s absence.
The appeal was set down to be heard on 1 June 2021 and this was communicated to the parties by email on 19 April 2021.
On the day prior to the hearing the Court received email correspondence from the appellant indicating that he was overseas and unable to return to Australia for the hearing. It is plain from his brief email that the appellant sought to have the hearing postponed. The respondent opposed the request.
I caused my Associate to respond to the appellant to advise that I had granted him leave to attend the appeal remotely by way of web conference. The emailed response stated that the appellant may make any application for an adjournment at the commencement of the hearing. A link to appear by web conference was provided to the appellant for that purpose. The email advised the appellant that if he did not attend, the appeal may be dismissed in his absence.
I am satisfied that the appellant received this email communication as well as the link to appear at the hearing by web conference. Given the correspondence, the appellant could have no expectation that the hearing of the appeal would be postponed.
The appellant was not in attendance either in person or by web conference when the hearing commenced. An unsuccessful attempt was made to contact him by telephone on the contact number provided on his notice of appeal.
It was open for the Court to dismiss the appellant’s appeal in his absence pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). Had an order under that rule been made, it would have been open to the appellant to later seek to have the order set aside.
In my discretion, I determined not to adopt that course. I had regard to the lack of particularity in the single ground of appeal, and to the fact that the appellant had not filed any written submissions in advance of the appeal and that he had provided no explanation for his failure to do so. The appellant’s email to the Court did not explain the circumstances in which he had gone overseas, and there was no indication as to how long that circumstance might persist.
The correspondence passing between the appellant and the Court will be marked for identification MFI-1.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth. Associate:
Dated: 1 June 2021
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