Federal Court of Australia Heenatigala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 346 Appeal from: Heenatigala & Anor v Minister for Immigration & Anor [2020] FCCA 1055 File number: VID 362 of 2020 Judgment of: O'BRYAN J Date of judgment: 5 April 2022 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – no appearance by the appellants – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 65, 476 Federal Court Rules 2011 (Cth) r 36.75 Migration Regulations 1994 (Cth) Sch 2, cl 187.233 Cases cited: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 5 April 2022 Counsel for the Appellants: The Appellants did not appear Solicitor for the First Respondent: S Roeger of Australian Government Solicitor ORDERS VID 362 of 2020 BETWEEN: PUBUDUNI NIROSHIMA HEENATIGALA First Appellant RAVISAD MALINDA WALPOLA KANKANAMALAGE Second Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: O'BRYAN J DATE OF ORDER: 5 April 2022 THE COURT ORDERS THAT: 1. The appeal be dismissed pursuant to r 36.75 of the Federal Court Rules 2011 (Cth). 2. The appellants pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'BRYAN J: Introduction 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) on 6 May 2020, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 October 2017. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), made on 12 June 2017 under s 65 of the Migration Act 1958 (Cth) (Act) refusing to grant the appellants Regional Employer Nomination (Permanent) (Subclass 187) visas. 2 The first appellant is a 28 year old Sri Lankan national. Her husband, the second named appellant, is also a Sri Lankan national. 3 The appellants were not legally represented before the Tribunal, the Federal Circuit Court or this Court. 4 The appellants did not appear at the hearing of the appeal today. The Court attempted to contact the first appellant at the telephone number on the Court file, but without success. 5 The first respondent sought an order dismissing the appeal, with costs, pursuant to rule 36.75 of the Federal Court Rules 2011 (Cth) by reason of the appellants' failure to appear. I made that order in the hearing and informed the first respondent that I would provide reasons during the course of the afternoon. These are my reasons for making the orders. 6 I considered it appropriate to make an order dismissing the appeal for two reasons. First, no explanation has been provided by the appellants for their non-appearance prior to the hearing. Second, no arguable point of appeal arises from the written materials that have been filed on the appeal. Absence of explanation prior to hearing 7 I am satisfied that the appellants had proper notice of the hearing. The appeal was filed on 2 June 2020. Timetabling orders were originally made on 11 June 2020, with relevant dates being dependent on the hearing date. In circumstances where the appellants were not legally represented and required the assistance of an interpreter, the Court determined that the appeal should be listed for hearing in open court when it was possible to do so, rather than via digital technology. 8 On 17 January 2022, the parties were notified by email that the appeal was listed for hearing at 10.15 am today. 9 On 20 March 2022, the first appellant provided the Court with written submissions, although the submissions were not filed and were not served on the first respondent. The Court informed the first appellant that the submissions were required to be provided to the first respondent and forwarded the submissions to the first respondent. 10 On 28 March 2022, the Court sent a further email to the parties confirming that the hearing of the appeal would proceed in open court, although the hearing time was altered from 10.15am to 11.00am. The email also provided contact details if the parties had any questions. 11 As noted above, after the appeal was called for hearing, the Court was adjourned to enable Court staff to attempt to contact the first appellant by telephone. The first appellant did not answer the call. 12 In those circumstances, I am satisfied that the appellants were given adequate notice of the hearing, did not appear and failed to provide an adequate explanation for their non-appearance prior to the hearing. No arguable point of appeal arises 13 On 9 May 2016, the first appellant applied for the visas in the "Direct Entry stream" with the nominated occupation "Retail Manager (General)", including her husband as a member of her family unit. The first appellant was employed in that position at the Tom Price Hotel Motel in Western Australia operated by Raminea Pty Ltd pursuant to a workplace agreement signed on 4 May 2016. An application for approval of the nomination by Raminea Pty Ltd (as trustee for the Ian Duncan Family Trust) was made, as required by the applicable regulations. 14 In its decision, the Tribunal explained the criteria applicable to the visas for which the appellants had applied as follows (at [3] to [5]): 3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream. 4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of 'Retail Manager'. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream. 5. The delegate refused to grant the visas because the applicant did not meet cl. 187.233 of Schedule 2 to the Regulations because the nomination lodged by 'Raminea Pty Ltd AFT [sic] The Trustee for the Ian Duncan Family Trust' was withdrawn on 2 May 2017. 15 On 2 May 2017, a delegate of the first respondent wrote to the appellants to inform them that the nomination submitted by Raminea Pty Ltd, listing the first appellant as their nominee, had been refused. The letter of 2 May 2017 incorrectly stated that the sponsorship nomination had been refused, when it had actually been withdrawn. However, in the decision made on 12 June 2017 refusing to grant the visas, the delegate correctly stated that the sponsorship nomination had been withdrawn. 16 The appellants sought review of the delegate's decision in the Tribunal. In that hearing, the appellants accepted that the nomination had been withdrawn. The Tribunal concluded that, in those circumstances, the applicable criteria in cl 187.233 of Schedule 2 to the Migration Regulations 1994 (Cth) could not be satisfied and affirmed the delegate's decision. Clause 187.233 requires that the relevant employer has made a nomination in favour of the visa applicant, the Minister has approved the nomination and the nomination has not subsequently been withdrawn. 17 The Tribunal's reasons disclose that the appellants are aggrieved by the fact that the first appellant had worked at the Tom Price Hotel Motel in Western Australia as a Retail Manager for some 13 months but that her employer, Raminea Pty Ltd, had withdrawn her nomination following issues that had arisen in the course of her employment. As unfortunate as the circumstances may be, they do not have a bearing on the applicable criteria for the grant of the visas. 18 The appellants sought judicial review of the Tribunal's decision in the Federal Circuit Court pursuant to s 476 of the Act. Subject to various exceptions (which are not presently applicable), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The application before the Federal Circuit Court listed six grounds of review. The appellants' principal contention was that the Tribunal erred in failing to enquire into, and make findings in respect of, the first appellant's employment dispute. The primary judge determined that the reason that the nomination had been withdrawn was legally irrelevant to the question whether the criteria for the grant of the visa had been satisfied (at [22], [26] and [38]). The primary judge concluded that the appellants had not demonstrated jurisdictional error in the Tribunal's decision and dismissed the application with costs. 19 The appellants' notice of appeal to this Court states the following grounds of appeal: 1. Applicant thinks the order, which is based on the application has a question of law and it should be investigated. 2. Applicant has provided lot of information and supporting documents for the Visa application. Applicant believes this information was not considered properly and not granted a fair order. 20 In support of the appeal, the first appellant swore an affidavit on 29 May 2020 annexing a copy of the order of the Federal Circuit Court. The affidavit also set out certain details of the appellants' personal circumstances, which largely repeats matters referred to in the Tribunal's reasons. The appellants also provided the Court with a written submission which similarly set out certain details of the appellants' personal circumstances. The circumstances recounted in the submissions are not legally relevant to the Tribunal's decision or the Court's appellate function. 21 None of the materials filed or otherwise provided to the Court by the appellants identify any arguable ground of jurisdictional error in the Tribunal's reasons, or raise an arguable ground of appeal from the decision of the Federal Circuit Court. Conclusion 22 I therefore dismissed the appeal with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan. Associate: Dated: 5 April 2022