Ahasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 387
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ahasan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 387
File number(s): SYG 2279 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 23 May 2022 Catchwords: MIGRATION – Administrative Appeals Tribunal – Employer Nomination (Permanent) (Class EN) visa – whether the Administrative Appeals Tribunal (the Tribunal) acted unreasonably by making a decision on the application simply on the grounds that the business nominator's application for review was also affirmed – whether the Tribunal made a jurisdictional error by failing to fulfil its duty to afford procedural fairness to the Applicants – whether the Tribunal failed to take into consideration the time lapsed since the business noncompliance and sponsorship bar. Subsequently, the applicant and business nominator were not afforded a fair opportunity – whether the Tribunal denied the Applicant the opportunity to comment on some aspects of their findings – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 143(2), 224(1)(g)
Migration Act 1958 (Cth) ss 359A, 359AA
Migration Regulations 1994 (Cth) cl 186.223 of Schedule 2
Cases cited: Australia Securities and Investments Commission v Cassimatis (2013) 220 FCR 256
Jurado v Minister for Immigration and Anor [2020] FCCA 2747
Singh v Minister for Immigration and Border Protection (20170 253 FCR 267
Spencer v Commonwealth of Australia (2010) 241 CLR 118
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of last submission/s: 17 May 2022 Date of hearing: 17 May 2022 Place: Sydney Counsel for the Applicants: The First Applicant appeared in person. Solicitor for the Respondents: Ms Pieri appeared behalf of the First Respondent. ORDERS
SYG 2279 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MOHAMMED NAZMUL AHASAN
First Applicant
MRS SHEIKH AFRUZA HOQUE
Second Applicant
MR NABIL AHASAN
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
23 MAY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First Applicant is to pay the First Respondent’s costs, fixed in the amount of $3930.00.
3.The First Applicant is appointed as a Litigation Guardian of the Third applicant who is a minor.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The first applicant is a male citizen of Bangladesh. The second and third applicants are the first applicant’s wife and child, respectively. The family first arrived in Australia on 8 February 2014. On 10 September 2018, the first applicant applied for an Employer Nomination (Permanent) (Class EN) visa in the temporary residence transition stream, for Maxpress Trading Company Pty Ltd (“the Nominator”).
On 14 June 2019, the Department of Home Affairs (“the Department”) invited the first applicant to comment on information, namely that, the nomination submitted by the nominator had been refused. The first applicant provided a statement in response to the invitation for comment.
On 10 August 2019, a delegate of the Minister for Home Affairs (“the delegate”), refused the application on the basis that the first applicant did not meet cl 186.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), as the application for a nominated occupation in relation to the first applicant had been refused by the delegate on 14 June 2019.
The applicants’ sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 5 November 2021, the Tribunal affirmed the delegate’s decision not to grant the first applicant and his family their visas.
The first applicant now seeks judicial review of the Tribunal’s decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is relatively short. After setting out the relevant background, the Tribunal noted that there were various criteria that were required to be satisfied pursuant to
cl 186.223 of the Regulations, which included that the employer nomination had been approved, that the employer nomination has not subsequently been withdrawn and that the position was still available to the applicant.
The Tribunal noted that on 5 November 2021 that it had affirmed a decision to refuse the nominator in respect of the visa application, for the first applicant.
At paragraph 14, the Tribunal noted that the first applicant confirmed to the Tribunal that he understood and accepted that in the circumstances, where there was no nomination approved, the application for visas regarding the first applicant and his family, could not be successful as the approval of the nomination was one of the requirements for the grant of the 186 visas. As cl 186.223(2) of the Regulations could not be met by the first applicant, the Tribunal affirmed the decision to refuse the applicant his visa.
GROUNDS OF JUDICIAL REVIEW
In the applicants’ Initiating Application filed with the Court on 9 December 2021, the first applicant set out the following grounds of judicial review:
Ground One
The Administrative Appeals Tribunal (the Tribunal) acted unreasonably by making a decision on the application simply on the grounds that the business nomination tours application for review was also affirmed
Ground Two
The Tribunal made a jurisdictional error by failing to fill its duty to afford procedural fairness to the applicant’s:
a)the Tribunal failed to properly assess the application and nomination;
b)the Tribunal failed to take into consideration the hardship the applicants will suffer. The applicants seek a fair chance and requested judicial review
Ground Three
The Tribunal failed to take into consideration the time lapsed since the business non-compliance and sponsorship bar. Subsequently, the applicant and the business nominator were not afforded a fair opportunity.
a)The Tribunal failed to take into consideration the business nominator’s recent activity and compliance:
i.the businesses bar concluded on 8 January 2018. The business nominator applied for approval on 24 January 2018
ii.the matter was heard in 2021, proximally three years after the ban had concluded.
Ground Four
The Tribunal denied the applicant the opportunity to comment on some aspects of the findings.
PRELIMINARY ISSUE
The matter was listed for a Summary Dismissal Hearing pursuant to ss 143(2) and 224(1)(g) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), at the request of the first respondent.
The following the principles apply in relation to the power of the Court to summarily dismiss a matter:
1. For the moving party (here, the Minister) there is the onus of persuading the Court that the application has no reasonable prospect of succeeding: (see; Australia Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 at [45]).
2. As explained by French CJ and Gummow J in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [22]:
The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and the deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which made be propounded by permissible amendment. It will include the classes of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
3. The concept of “no reasonable prospect of success” involves a lower threshold in the previous tests for summary dismissal that have required the proceeding would necessarily fail. Nonetheless, the discretion must still be exercised with caution.
4. An assessment of whether the proceeding has no reasonable prospect of success involves the making of value judgements in the absence of a full and complete factual matrix and arguments; the provisions vest a discretion in the courts.
THE APPLICANTS’ SUBMISSIONS
The first applicant appeared before the Court unrepresented. The first applicant did not require the assistance of an Interpreter. Despite Court orders, no material or submissions were provided to the Court in support of the applicants’ case.
The Court explained to the first applicant that there was an essential ingredient in order for him to be successful in his visa application, for the type of visa that he sought, being an approved Employer Nomination.
The first applicant stated that he been with the company for six years and had an employer that wanted him to stay with him. Further, his son, was aged nine years, had grown up in Australia and regarded it as his home. The applicant also complained that he had not been given sufficient time to prepare for the hearing.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf of the first respondent, it was submitted that the application did not have any reasonable prospects of success. That is, even if there was an error (which was denied) in the way in which the Tribunal undertook its review of the delegate’s decision, it would be futile to remit the matter to the Tribunal because the applicant was not the subject of an approved nomination, which is an essential requirement for the grant of the visa sought, pursuant to cl 186.223(2) of the Regulations. This is because the nomination submitted by the nominator was refused by the Department on 14 June 2019 and this decision was affirmed by the Tribunal on 5 November 2021.
The first respondent submitted that the applicant could never have satisfied clause 186.223 of the Regulations, because the applicant was not the subject of an approved nomination: (see; Jurado v Minister for Immigration and Anor [2020] FCCA 2747 at [59-60] per Kendall J; Singh v Minister for Immigration and Border Protection (20170 253 FCR 267 at [88]-[89] per Mortimer J).
In relation to the pleaded grounds of judicial review, ground one is an allegation of legal unreasonableness. The Tribunal’s decision was open to it, on the basis that the primary requirement for the grant of the visa, being an approved nomination of the time of the decision, did not exist.
Grounds two and four contend a failure to afford procedural fairness. The particulars contend that the Tribunal failed to properly assess the application nomination and failed to take into consideration hardship the applicants’ would suffer. It was submitted that the Tribunal had no option other than to affirm the decision under review and hardship the applicant would suffer, was not relevant to this. It was submitted that there was no breach of any procedural fairness requirements and that there was no factual material which would indicate that the Tribunal failed to assess the application properly. This ground cannot succeed as there was no option for the Tribunal, other than to affirm the delegate’s decision.
Ground three contends that the Tribunal failed to consider the time that elapsed since the business non-compliance and sponsorship of the nominator. The particulars of the ground further contend that the Tribunal failed to take into account the business nominator’s recent activity and compliance and that the businesses bar concluded on 8 January 2018.
The ground appears to contend that the Tribunal failed to consider that the nominator’s bar ended three years previously, and that the nominator had been in compliance with its obligations, or that the time lapse of three years was detrimental to the proceeding.
In relation to the first option, there was no error in the Tribunal not expressly considering the fact that the nominator had been in compliance with its obligations. If it is the second option, the first respondent submitted that the applicant did not suffer any prejudice because the Tribunal made its decision three years after the application to the Tribunal.
CONSIDERATION
In order for the applicant to be granted the visa that he sought, it was necessary for the applicant to meet the various criteria under clause 186.22 of the Regulations. Critically, this included at cl 186.223(2) of the Regulations, that the Minister had approved the (employer’s) nomination and at cl 186.223(3) of the Regulations that the nomination had not been subsequently withdrawn.
In the current case, the Minister had not approved the employer’s nomination and that decision had been affirmed by the Tribunal. As a result, notwithstanding any other complaints that the applicant might have in relation to the way the Tribunal conducted its hearing, and the decision it came to, there was no other decision open to the Tribunal other than to affirm the delegate’s decision to refuse the first applicant and his family their visas.
Even if the Court, which it is not, was of the view that there was merit in the grounds of judicial review, it would be futile to remit the matter back to the Tribunal for reconsideration, as the only outcome could be the same decision, as an essential requirement for the grant of the visa sought, was not and could not be met.
In terms of the applicant’s grounds of judicial review, the Court is also of the view that they have no merit.
Ground one complains that the Tribunal acted unreasonably in that the Tribunal affirmed the delegate’s decision on the basis of the business nominator’s application for review had also been affirmed. As indicated above, the legislation requires as an essential ingredient for the grant of the visa sought, that is, an approved nomination in place. There was nothing legally unreasonable in the Tribunal’s decision given the circumstances. Ground one has no merit
Ground two is a general complaint of failure to afford procedural fairness to the applicants. The first particular complains that the Tribunal failed to properly assess the application nomination. No material is provided which would indicate how it is that the Tribunal failed in this regard. A perusal of the Tribunal’s decision record indicates that it properly assessed the application of the basis of the information that was before it, and came to a decision that was open to it. The second particular complains that the Tribunal failed to take into consideration hardship the applicants will suffer. Any hardship was not a matter that the Tribunal could take into account in the circumstances of this particular matter.
Ground three is a complaint that the Tribunal failed to take into consideration the time that had lapsed since the business non-compliance and sponsorship bar. The applicants complain that they were not given a fair opportunity. With respect to the applicants, these matters are irrelevant. The nominator submitted their application after their sponsorship bar had expired and were accordingly entitled to submit a nomination. That nomination was not approved by the Department. The Tribunal, in a separate decision to that of the applicants, affirmed the delegate’s decision not to approve the nomination. The issues that relate to the nominator, are not matters that this Court can take into account in relation to the applicants’ situation. Whilst the time delay between the rejection by the Department of the nomination and the hearing before the Tribunal is to be regretted, this was not a matter that could be taken into account by the Tribunal.
The final ground alleges that the Tribunal denied the first applicant the opportunity to comment on some aspects of the findings. No particulars are provided as to what matters were not taken into account. The ground consists of a bare allegation. If grounds of judicial review are not supported by particulars, for that reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Further, there is nothing in the material contained within the decision record or the Court Book which indicated that there was material that was required to be put to the applicant pursuant to s 359A or s 359AA of the Act. The only relevant matter was the fact that the applicant was not the subject of an approved employer nomination. The applicant was invited to comment on this fact prior to the hearing. Ground four has no merit.
CONCLUSION
Accordingly, in these circumstances, pursuant to rule 13.13(a) of the Rules, each of the applicants’ application is dismissed on the basis that the applicants have no reasonable prospect of successfully prosecuting the proceeding.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 23 May 2022
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