Enuganti v Minister for Immigration, Citizenship and Multicultural Affairs

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. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Downes.