Ramandeep v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal is dismissed.
2. The appellant pay the first respondent's costs fixed in the amount of $4,000.
3. The first respondent serve a copy of these orders on the appellant, by email, at the address recorded in the notice of appeal.
4. Any application under rule 36.75(2) of the Federal Court Rules 2011 (Cth) be filed and served with 14 days of service of these orders.
5. The name of the first respondent be changed to Minister for Immigration, Citizenship and Multicultural Affairs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THAWLEY J: 1 The appellant did not appear at the hearing of his appeal. The hearing date had been set for a time which the appellant had agreed was convenient to him. The appeal had been listed at an earlier date this week but the appellant indicated that he was moving house and that particular day was inconvenient to him. A timetable had been set to allow for the appellant to provide written submissions if he wished. No submissions were filed. Attempts have been made by the respondent and the Court to contact the appellant today, without success. The hearing was stood down for about an hour in case the appellant was somehow delayed. The matter was called outside Court. 2 The Minister applied for the appeal to be dismissed under rule 36.75(1)(a)(i). In light of the opportunity afforded by rule 36.75(2) of the Federal Court Rules 2011 (Cth) for a party to make an application to set aside or vary an order made at the hearing of an appeal when that party was absent, and having regard to the Court's workload, the Court has determined that it is preferable for the hearing to proceed in the absence of the appellant. 3 The appellant's appeal is from orders made on 12 August 2020 by what was then the Federal Circuit Court of Australia (FCCA). That court dismissed the appellant's application for judicial review of a decision by the Administrative Appeals Tribunal. The Tribunal affirmed a decision made by a delegate of the Minister for Home Affairs to refuse to grant the appellant a Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visa. 4 The relevant facts have been set out in the decisions of the Tribunal: Ramandeep (Migration) [2019] AATA 6944; and the FCCA: Ramandeep v Minister for Immigration & Anor [2020] FCCA 2193. It is not necessary to repeat the facts in detail. 5 The requirements for grant of the visa included those specified by cl 187.233 of Sch 2 of the Migration Regulations 1994 (Cth). The requirements of cl 187.233 include that the Minister has approved a nomination application made by the person who proposed to employ the visa applicant: cl 187.233(3). The appellant applied for the visa on 7 November 2017 on the basis of prospective employment as a cook with Annilax Enterprises Pty Ltd, referred to as the "nominator". 6 The nominator's application was refused on 17 May 2018. The appellant was invited by the delegate to comment on the fact that the sponsor's nomination application had been refused. The appellant did not respond to this invitation. 7 On 18 June 2018, the delegate refused the visa application on the basis that the appellant did not meet cl 187.233(3) because he was not the subject of an approved nomination. The failure to meet that criterion meant that the visa could not be granted. 8 On 8 July 2018, the appellant applied to the Tribunal for review of the delegate's decision. The nominator also apparently sought review in the Tribunal, although its application for review was not contained in the material before this Court or the FCCA. 9 On 1 October 2019, the Tribunal invited the appellant to comment on the fact that the nominator had withdrawn its application to the Tribunal. The Tribunal explained that this was relevant because cl 187.233(3) required the nomination to be approved in order for the appellant to be granted the visa. 10 The invitation advised that if no response was provided within the period allowed, namely by 15 October 2019, the Tribunal may make a decision on the review without taking any further action to obtain the information and the appellant would "lose any entitlement [he] might otherwise have had… to appear before [the Tribunal] to give evidence and present arguments". The appellant did not respond. 11 On 16 October 2019, the Tribunal affirmed the delegate's decision and provided reasons. 12 By his notice of appeal, the appellant raised three grounds: first, that the Tribunal took into account irrelevant considerations and "misconduct[ed] the facts"; secondly, that the appellant's employer had withdrawn its application without informing the appellant; and, thirdly, that the Tribunal "did not inform [the appellant's] employer why he withdrew my application". 13 As to the first ground, I am satisfied that no irrelevant consideration was taken into account. Nor was any error made in making findings of fact or in the process of making findings of fact. 14 Grounds two and three were not raised with the primary judge. Even if the facts mentioned in those grounds were established by evidence, which they were not, this could not lead to a conclusion that the Tribunal erred. Leave to rely on grounds two and three is therefore refused. 15 As the primary judge held, the Tribunal reached the only decision it could have, namely to affirm the delegate's decision not to grant the visa. The delegate could not have granted the visa unless the Minister had approved the nomination made by the nominator. The nomination had been refused. In circumstances where the nominator had withdrawn its application for review in the Tribunal, it was not possible for the Tribunal ever to reach a conclusion that cl 187.233(3) was or would be satisfied. It was not possible for the appellant to obtain a new nomination for the visa: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105 at [88]-[89]. Even if there was some error on the part of the Tribunal, which there was not, it was necessarily an immaterial error and therefore not jurisdictional error: it was impossible for the Tribunal to reach a conclusion that the criteria for grant of the visa was or could be satisfied. The primary judge did not err in so concluding. 16 For those reasons, the appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.