D THE APPLICATION FOR LEAVE TO APPEAL
34 The initial application for leave to appeal, filed in August 2021, was replaced by an amended application for leave to appeal, filed in September 2021.
35 Rule 35.12(2)(d) of the FCR provides that an application for leave to appeal must be accompanied by a draft notice of appeal complying with FCR 36.01(1)-(2). The amended application is not accompanied by a draft notice of appeal. The affidavit affirmed by Mr Singh on 30 August 2021 and filed in support of the original application for leave to appeal (Singh Affidavit) does, however, contain a notice of appeal in the proper form.
36 I do not think any unfairness is occasioned upon the Minister if the Court has reference to the draft notice of appeal annexed to the Singh Affidavit, which contains only the following ground and particulars:
The Federal Circuit Court erred in failing to find that the second respondent did not consider evidence that corroborated the first applicant's claims.
Particulars
a) The appellant provided corroborating detailed evidence in the forms of Affidavit and documents regarding personal circumstances, Employer Sponsorship, Employer's Financials.
b) The second respondent failed to engage in an active intellectual engagement with the contents of those documents as is required by law.
c) The second respondent draw inferences about the evidence provided by the first appellant but only mere mention of evidence does not permit the second respondent to draw those inferences against the appellant.
d) The second respondent gave no evidentiary weight to the corroborating evidence.
e) In the circumstances, the second respondent was required to specifically address and make findings in relation to the corroborating evidence, rather than mere mention of the evidence at paragraph 10 of the second respondent judgment.
(Emphasis in original).
37 Mr Singh appeared at the hearing and made oral submissions. No written submissions were filed by the applicants. The only material in support of the application is the Singh Affidavit, which relevantly states that:
…
2. All the evidence been provided to Second Defendant were not considered before making the decision.
3. An opportunity for a natural justice was not provided to me and/or my employer.
4. First Respondent failed to consider all the relevant facts and made decision purely on the assessment of Regional Certifying body's assessment without providing any reasoning or explanation of the negative outcome.
5. Second Respondent failed to consider all the facts and financials provided to demonstrate that the position was genuine as well as the employer had a capacity to nominate
38 In summary, the arguments raised were overlapping, and may conveniently be grouped into four camps:
(1) all of the evidence was not considered;
(2) following from the first point, the "corroborating evidence" was given no weight;
(3) natural justice was not afforded to the applicants; and
(4) proper reasons were not given by the Tribunal.
39 It is probably already evident from the above, but the ground of the application for leave to appeal, and the matters raised in the Singh Affidavit, do not cast doubt on the primary judgment.
40 The insuperable difficulty, properly recognised by the primary judge, is that there was no error because Mr Singh did not have an approved nomination, and therefore the applicants could not be eligible for the visas. The primary judge was clearly correct in rejecting the assertion of jurisdictional error on behalf of the Tribunal.
41 Regrettably, the applicants have misdirected their efforts. So much is reflected in the Singh Affidavit and the proposed grounds of appeal, which are primarily directed at the "second respondent", being the Tribunal, and advance a contention that natural justice was not provided to Mr Singh's employer. Despite the submissions made today, I explained this Court does not have jurisdiction to conduct a merits review of the Tribunal's decision: s 476 of the Migration Act.
42 In any event, for completeness, I will briefly address the applicants' contentions.
43 As to the first and second contentions identified above, for reasons already explained, the primary judge was correct to find a claim that the Tribunal failed to consider "all the facts" could not succeed.
44 Moreover, contrary to particular (a) of the draft notice of appeal, there was no affidavit evidence before the Tribunal. In any event, the primary judge also had regard to Mr Singh's affidavit evidence filed in the FCC, notwithstanding that evidence focussed on the refusal of the nomination, rather than the issue before the Tribunal, which was the relevant visa refusal (at [14]-[15]). The primary judge was satisfied that affidavit evidence did not support a conclusion that there was an arguable case for error in the Tribunal's decision. I can see no reason to doubt that conclusion.
45 I hasten to add here that a finding that a decision-maker has failed to "engage" with a particular matter so as to reveal a lack of any active intellectual process will not be made lightly and must be supported by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 (at 364 [48] per Griffiths, White and Bromwich JJ). Nothing that the applicants submit should have been considered by the Tribunal was required to be taken into account when applying cl 186.233 of the Regulations.
46 To the extent that the third and fourth contentions can be construed as proposed points of appeal, they were not put below; accordingly, leave to raise these points on appeal would be required. In addition, the third and fourth contentions impermissibly invite the Court to engage in a review of the Tribunal's decision.
47 During the course of oral submissions today, Mr Singh noted he believed the primary judge dealt with the matter in form but not in substance and did not allow him to develop his arguments. I was conscious during the hearing of affording Mr Singh every opportunity to present his case. Nothing said could overcome the real difficulty, being the rejection of the nomination made by K&P in respect of which judicial review was not pursued.
48 Whatever sympathy I feel for the applicants, my role is a limited one. Mr Singh, in the course of his articulate presentation, noted he recognised the reality that the circumstances of his family need to be reconsidered by the Department of Home Affairs (Department). I think he is correct in this assessment. It is not an appropriate function of the judicial branch of government for me to send a matter back to the Department just because I may have an underlying view as to the merits of the decision or because I feel some sympathy for the applicants.
49 I hope and trust Mr Singh and his family will go away from the Court knowing I have reviewed the papers carefully and ascertained whether there is any legal basis for me to consider any alternative challenge to the primary judge's decision. As explained above, I can see no reason to grant leave to appeal that decision.