Federal Court of Australia

Gena v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 603

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The application for an extension of time and leave to appeal be dismissed.

3.    The applicants pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The applicants sought an extension of time and leave to appeal from a judgment of the (then) Federal Circuit Court of Australia (the Federal Circuit Court) which dismissed the applicants’ application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal).

2    The Tribunal’s decision affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

3    The Federal Circuit Court dismissed the application pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules).

4    On 5 June 2023, I made orders that the application for an extension of time and leave to appeal be dismissed, and that the applicants pay the Minister’s costs as agreed or taxed. These are my reasons for making those orders.

Background

5    The applicants are citizens of India. The second, third and fourth applicants are, respectively, the first applicant’s wife and adult children.

6    The applicants applied for the visas on 6 September 2017. At that time, Class RN contained one subclass—Subclass 187 (Regional Sponsored Migration Scheme). The first applicant was the primary applicant, and the second, third and fourth applicants were secondary applicants. The applicants made a combined application.

7    The criteria for the grant of the Subclass 187 visa are contained in Pt 187 of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations).

8    It was necessary for the first applicant, as the primary applicant, to satisfy cl 187.233 of Sch 2:

(1)     The position to which the application relates is the position:

(a)     nominated in an application for approval that seeks to meet the requirements of:

(i)     subparagraph 5.19(4)(h)(ii); or

(ii)     subregulation 5.19(4) as in force before 1 July 2012; and

(b)     in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

(2)     The person who will employ the applicant is the person who made the nomination.

(3)     The Minister has approved the nomination.

(4)     The nomination has not subsequently been withdrawn.

(4A)     Either:

(a)     there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

(b)     it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

(5)     The position is still available to the applicant.

(6)         The application for the visa is made no more than 6 months after the Minister approved the nomination.

9    The fate of the second, third and fourth applicants’ application, as secondary applicants, depended on satisfaction of cl 187.311 of Sch 2:

The applicant:

(a)     is a member of the family unit of a person (the primary applicant) who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

(b)     made a combined application with the primary applicant.

10    The first applicant did not satisfy cl 187.233(3). The nomination lodged by his proposed employer, Abid Australia Pty Ltd (Abid), had not been approved by the Minister. It followed that the combined visa application could not be granted. The Minister’s delegate refused the application accordingly (the visa decision).

11    For completeness, I record that Abid sought review by the Tribunal of the non-approval of its nomination (the nomination decision). On 7 May 2020, the Tribunal affirmed the nomination decision.

12    In the meantime, the applicants applied to the Tribunal to review the visa decision.

13    On 13 May 2020, the Tribunal informed the applicants that it had affirmed the nomination decision. On 27 May 2020, the applicants’ registered migration agent wrote to the Tribunal requesting that the Tribunal’s review of the visa decision be placed “on hold” while Abid sought judicial review of the Tribunal’s affirmation of the nomination decision. The Tribunal considered the request, but refused it on the basis that it was not required to defer its decision-making processes indefinitely: Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 (Huo) at [31]; Manna v Minister for Immigration [2012] FCMA 28 (Manna) at [54]–[61].

14    The Tribunal then reasoned that, since it had affirmed the nomination decision, there was no approved nomination to satisfy cl 187.233(3) and that the visa decision under review should be affirmed.

15    The applicants’ application for judicial review in the Federal Circuit Court contained one ground, expressed in these terms:

1.     The tribunal in applicant’s matter affirmed the decision of the Department of Home Affairs because Abid Australia Pty Ltd (the employer of the applicant) did not have their nomination approved (AAT case number: 1801605). The employer (Abid Australia Pty Ltd) has sought the judicial review of the AAT decision of affirming the decision under review to refuse the nomination application. The employer (Abid Australia Pty Ltd) has lodged the Judicial review application at Sydney Registry on 02 June 2020 (SYG1347/2020-Abid Australia Pty Ltd v MICMSMA & Anor). If the court accede to the Abid Australia pty ltd application, that Mr Gena’s application would also have to succeed.

16    The primary judge reasoned that, in substance, this ground simply recited the history of the matter before him and did not identify any arguable case of relevant error. His Honour noted that it was an essential criterion for the visas in question that there be an approved nomination in respect of the first applicant. The applicants could not demonstrate this fact. His Honour was satisfied that the judicial review application did not raise an arguable case for relief and that it was appropriate, in those circumstances, to exercise the Federal Circuit Court’s power under r 44.12 of the FCC Rules to dismiss the application, which his Honour did with costs.

The present application

17    The applicants’ draft notice of appeal contained five grounds, expressed as follows:

1.    The Hon. Federal Circuit Court judge erred in dismissing an application for judicial review application without applying appropriate consideration.

2.    The Hon. Federal Circuit Court Judge made legal error in his judgment by not properly Appling criteria for Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3.    The Administrative Appeals Tribunal (AAT) erred in its judgment to the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

4.    The Administrative Appeals Tribunal made legal error has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

5.    The Hon. Federal Circuit Court judge erred in dismissing an application without assessment of judicial review application SYG1347/2020 which has some bearing on current application.

18    Before considering the proposed grounds, it is appropriate that I record that the applicants faced an insurmountable difficulty in succeeding on their application for an extension of time and leave to appeal. It was the undeniable fact that the first applicant could not satisfy the essential requirement of cl 187.233(3). Thus, even if an appealable error in the primary judge’s decision could be shown, an appeal to this Court would be utterly futile and could not lead to any meaningful relief. This was reason alone to dismiss the application. Even so, the proposed grounds of appeal were without merit.

19    As to the first proposed ground, there was no warrant for the contention that the primary judge dismissed the application for judicial review “without applying appropriate consideration”. Plainly, the primary judge did give appropriate consideration to the application. His Honour correctly identified that the sole ground advanced by the applicants did not raise an arguable case. The undeniable fact was that the applicants could not, by this ground, identify a case of relevant error on the part of the Tribunal.

20    Proposed Ground 2 was not arguable. The primary judge correctly identified that it was essential for the applicants to demonstrate the existence of an approved nomination meeting the legal requirement of cl 187.233(3).

21    Proposed Grounds 3 and 4 were not competent because they sought to impugn the Tribunal’s decision, not the judgment of the Federal Circuit Court. In any event, the Tribunal did not err in finding that there was no approved nomination to satisfy cl 187.233(3). Further, it was within the Tribunal’s discretion to refuse to “place on hold” its review of the visa refusal decision. The Tribunal did not err in having regard to the decisions in Huo and Manna.

22    Proposed Ground 5 referred to proceeding SYG1347/2020, which was the judicial review proceeding in respect of the Tribunal’s affirmation of the nomination decision. That proceeding was not relevant to the primary judge’s consideration of the judicial review application before him. Once again, the undeniable fact was that, at the time the Tribunal conducted its review of the visa decision, the first applicant did not have the benefit of an approved nomination satisfying cl 187.233(3).

Conclusion

23    For these reasons, the application for extension of time and leave to appeal was dismissed, with costs. It was not necessary for me to consider the other bases on which the Minister contended the application should be refused.

24    Finally, I record that, when the application for extension of time and leave to appeal was called on for hearing, the applicants did not appear. I was satisfied, on the basis of the Court’s correspondence with the applicants, and the Minister’s correspondence with the applicants (see Exhibit A), that the applicants were on notice of the hearing. I can only assume that they had no interest in appearing. The Minister submitted that the application for extension of time and leave to appeal should be dismissed for want of appearance under r 35.33(1)(a)(i) of the Federal Court Rules 2011 (Cth). I considered that it was more appropriate to deal with the application on its merits given the insurmountable difficulty in the application succeeding.

Associate:

Dated:    9 June 2023

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