FEDERAL COURT OF AUSTRALIA

Enuganti v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 544

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 be dismissed.

3.    The applicant pay the first respondent’s costs to be agreed or, failing agreement, to be taxed.

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

REASONS FOR JUDGMENT

DOWNES J:

1    This is an application for leave to appeal out of time from an interlocutory decision of the Federal Circuit Court of Australia dismissing an application for judicial review from a decision of the second respondent (the Tribunal): Enuganti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2099 (J).

2    The applicant is a citizen of India who applied for a Regional Employer Nomination (subclass 187) visa on 27 August 2018 on the basis of a proposed sponsorship by Gleam Accounting Pty Ltd (sponsor) in the nominated position of a Customer Service Manager.

3    A primary criterion for the grant of the visa is that the nominated position is still available to the applicant: Migration Regulations 1994 (Cth), Sch 2 cl 187.233(5).

4    On 6 March 2019, a delegate of the first respondent (the Minister) refused the application on the basis that the sponsor had been deregistered, resulting in the nominated position no longer being available. The applicant therefore did not meet the criteria under cl 187.233.

5    The applicant applied to the Tribunal for review of the delegate’s decision. Following a hearing, the Tribunal affirmed the delegate’s decision on 12 June 2019.

6    The applicant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. On 17 August 2021, the primary judge dismissed the applicant’s application brought under s 476 of the Migration Act 1958 (Cth) with costs, pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth). This was on the basis that the application did not raise an arguable case for the relief claimed. Written reasons were made available on 6 October 2021.

7    Any application for leave to appeal was required to be filed on or before 31 August 2021. Instead, it was filed by the applicant on 7 September 2021, being seven days out of time.

8    As the legal principles which are applicable to an application for leave to appeal out of time are well established and are not in dispute, it is appropriate to deliver short form reasons.

The applicant’s material

9    The application states there are four grounds of application, which I will treat as being proposed grounds of appeal (as did the Minister). These grounds are as follows:

(1)    the primary judge made a legal error in dismissing the applicant’s application for judicial review without appropriate consideration;

(2)    the primary judge made a legal error in his judgment by not considering the merit of the case and by not properly applying the criteria for a subclass 187 visa as set out in cl 187 of Schedule 2 to the Migration Regulations;

(3)    the Tribunal 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)”; and

(4)    the Tribunal erred in not considering the applicant’s “psychological report and compelling circumstances”.

10    The accompanying affidavit of the applicant dated 8 September 2021 provides background details. The affidavit also states:

(1)    in relation to the substance of the proposed appeal:

The Administrative Appeals Tribunal did not consider my evidence and affirmed decision of delegate of Department of Home Affairs on 12th June 2019.

…

I like to request Honourable Federal Court of Australia to consider my circumstance and mistake made by the Honourable Federal Circuit Court and Administrative Appeals Tribunal and allow my appeal to be heard and make decision in my favour.

(2)    in relation to the delay in filing the application for leave to appeal:

I was not aware about filing Federal Court Application in 14 days.

I have received copy of Judgement bit late. I have taken few more days to complete my Court Application. Please delays condone and consider our application for judicial review.

Explanation for delay

11    A delay of seven days is not a significant delay, and I accept the explanation for the delay contained in the applicant’s affidavit.

Prejudice

12    The Minister would suffer little prejudice from the delay given that (as the Minister accepts) the delay is minor.

Merits of the appeal

13    For the following reasons, there is insufficient merit in the proposed grounds of appeal such that it is not in the interests of the administration of justice to grant an extension of time.

14    That is because, by his proposed grounds, the applicant has failed to identify any error in the approach and judgment of the primary judge, and none is otherwise apparent.

15    Proposed ground one makes an unparticularised assertion that the primary judge “made legal error in dismissing [the applicant’s] application for judicial review without appropriate consideration”. The error of law is not identified, and nor is the consideration which the applicant contends would be appropriate. In circumstances where the applicant accepted before the Tribunal and the primary judge that he did not have an approved nomination, as recorded at J [4] and [8], there was no legal error by the primary judge in dismissing the application on the basis that he was not satisfied that an arguable case for the relief claimed had been raised: see J [13].

16    Proposed ground two contends that the primary judge did not consider the merits of the case or properly apply the relevant criteria in the Migration Regulations. However, as the primary judge was hearing an application for judicial review, merits review would have been impermissible, as found (correctly, with respect) by the primary judge: J [9]. Further, to the extent that the primary judge applied the relevant criteria in the Migration Regulations in considering whether the Tribunal erred, there is no error in the primary judge’s reasoning. His Honour was correct to conclude that, considering the relevant criteria, it was mandatory that the applicant had an approved nomination: J [12].

17    Proposed grounds three and four do not allege any error by the primary judge, but rather that the Tribunal erred:

(1)    in finding that there was no approved nomination to satisfy cl 187.233 of the Regulations; and

(2)    in not considering the “psychological report” and the applicant’s “compelling circumstances”.

18    At [16] of its reasons, the Tribunal found that there was no evidence before it to suggest that the applicant’s visa application was subject to a nomination that was approved and not subsequently withdrawn. There is no basis for the applicant to contend that this finding was erroneous, especially as no evidence appears to have been presented by the applicant to the contrary (whether before the Tribunal, the primary judge or in this Court) and the applicant advised the Tribunal that he did not have an approved nomination: J [4].

19    Further, the Tribunal expressly considered the letter dated 31 May 2019 from a consultant psychologist concerning the applicant, as well as the applicant’s other circumstances, at [14]–‍[15] of its reasons. Any allegation that the Tribunal erred is again without basis.

20    Finally, an overarching reason to refuse the application is that any remittal to the Tribunal would be futile. The requirement in Schedule 2 cl 187.233 of the Migration Regulations can only be satisfied by the approval of the original nomination that accompanied the visa application: see Singh v Minister for Immigration and Border Protection (2017) 253 FCR 267; [2017] FCAFC 105 at [82]–[90] (Mortimer J, as her Honour then was, with whom Jagot and Bromberg JJ agreed). In the absence of an approved nomination, the applicant’s proposed appeal has no prospects of success. In this regard, I also refer to Goswami v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1017 at [9(d)] (Griffiths J).

Disposition

21    For these reasons, the following orders will be made:

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

(2)    The application be dismissed.

(3)    The applicant pay the first respondent’s costs to be agreed or, failing agreement, to be taxed.

Associate:

Dated:    23 May 2024