Ahmed v Minister for Immigration - [2007] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHMED & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 94

MIGRATION – Where applicant is not the subject of an approved nomination – where the nominating business does not seek review of the primary decision - affect upon applicant’s review.

Migration Act 1958, ss.359A, 363A

Applicant:

SARFARAZ AHMED AND ORS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2334 of 2005

Judgment of:

Raphael FM

Hearing date:

24 January 2007

Date of last submission:

24 January 2007

Delivered at:

Sydney

Delivered on:

24 January 2007

REPRESENTATION

For the Applicant:

Mr Khan

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2334 of 2005

SARFARAZ AHMED AND ORS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

First Respondent

RFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Migration Review Tribunal made on 5 August 2005 to affirm a decision of the delegate that Mr Sarfaraz Ahmed and his family were not entitled to the grant of an Employer Nomination (Residence) Class BW Visa.
Mr Ahmed at first obtained a subclass 457 visa on 26 April 2001 which was valid until 1 May 2002. He entered Australia on 17 September 2001 and was joined by his family on 31 October 2001. They applied for a second series of subclass 457 visas on 30 April 2002 and those subclass 457 visas were approved on 11 December 2002. The subclass 856 visas, the subject of the Migration Review Tribunal decision, were applied for on 11 December 2003 the same day as the subclass 457 visas expired.
In order to obtain the subclass 856 visa the applicant was required to comply with regulation 856.213 which states:
“The applicant:
(a) has been nominated in accordance with subregulation 5.19(2) by an employer in respect of an appointment in the business of that employer; and
(b) …; and
(c) …”
That is a criteria that needed to be satisfied at the time of the application. There was a further criteria to be satisfied at the time of the decision, namely:
“856.221: The appointment mentioned in paragraph 856.213(a) is an approved appointment.”
Mr Ahmed’s employer was a business known as Unique Tannery the guiding mind of which is a Mr S A Khan. Unique Tannery was aware that in order for Mr Ahmed to obtain his long stay visa it needed to make the application under sub-regulation 5.19(2). It made such an application. Unfortunately, the officers of the Department made some inquiries relating to the application and made a determination unfavourable to the business. This determination can be found at page 1 of the supplementary court book. Unique Tannery was advised of its rights to seek a review of the decision from the Migration Review Tribunal but it did not do so. Because the nomination had been declined the Tribunal, when it became seized of the application for review of the delegate’s decision in the case of Mr Ahmed, wrote a letter pursuant to s.359A of Migration Act 1958 (the “Act”) on 31 March 2005. The letter at [CB 50-51] was addressed to Mr Khan because Mr Ahmed had nominated Mr Khan as his representative [CB 30]. The nomination form clearly indicates that if a representative is nominated, correspondence given to the representative will be taken to have been given to the applicant. The letter relevantly states:
“You are invited to comment in writing on the following information:
· The departmental file discloses that the nomination by the Unique Tannery to employ you in an approved position under the Employer Nomination Scheme was refused by the Department on 2 February 2004.”
[That being the date of the letter referred at [CB 1] of the supplementary court book]. The letter went on to explain to the applicant why the information was relevant stating:
“Without you being employed by Unique Tannery in the approved appointment of a leather (grader) technician the visa criteria cannot be met.”
The letter gave the applicant 28 days from the date upon which it was sent to respond and noted that:
“If the Tribunal does not receive any comments within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your comments or to invite you to appear before the Tribunal.”
On 20 April 2005 Mr Khan responded to that s.359A letter saying that it had been faxed to him in New Zealand for his comments but he was unable to make them at the time because he was out of the country.

He went on:
“However, the submission would be submitted to the member on hearing date or I am seeking further time until 10 May 2005 to make company submission.”
On 26 April 2005 the Tribunal granted a further 28 days from the date of the letter to respond. The letter of 26 April [CB 55] also says:
“If the Tribunal does not receive any additional information within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain the information or to invite you to appear before the Tribunal.”
No further information was received and the Tribunal then proceeded to make its decision. Not unexpectedly the decision affirmed the delegate’s decision:
“[18]: The refusal to approve the Unique Tannery’s application for an ‘approved appointment’ and its failure to apply for review means that the primary visa applicant is unable to satisfy clause 856.221 of Schedule 2 to the Regulations and ineligible for the grant of a Subclass 856 visa. This information because it was adverse to the primary visa applicant’s application for review was put to him in a Section 359A letter dated 31 March 2005. The response was due 24 April 2005. The visa applicant sought and was duly granted an extension of time to provide a response and it then became due on 24 May 2005. To date no response has been forthcoming and the Tribunal is thus entitled to proceed to a decision without doing anything further.
FINDINGS:
[19] The Tribunal based on the evidence before it, makes the following findings:
[20] The grant of a visa is incumbent on the primary visa applicant having an “approved appointment” in place. The refusal to approve the Unique Tannery’s application for an “approved appointment” on 2 February 2004 and its failure to apply for review means that the primary visa applicant is unable to satisfy clause 856.221 of Schedule 2 to the Regulations and is ineligible for the grant of a subclass 856 visa.”
Today Mr Khan appeared on behalf of Mr Ahmed. He told me that there existed, in his view, a valid nomination for a temporary 457 visa that had not expired and therefore there was no need to obtain a further nomination approval. Therefore, the rejection of the application by reason of the non-compliance with 856.221 was beyond jurisdiction. Unfortunately, Mr Khan was unable to provide any details of the alleged valid nomination nor was he able to convince me that a valid nomination for a temporary 457 visa was the same thing as a valid nomination for an 856 visa which seems to me to be covered by the regulations that I have already extracted in these reasons. I am unable to make a finding that the decision of the Tribunal was beyond jurisdiction for those reasons. Mr Khan then went on to say that the Tribunal acted unfairly in declining to provide the applicant with a hearing at which time he would have attended and would have put to the Tribunal matters relating to the nomination.
The difficulty I have with this argument from Mr Khan is that it appears to conflate the two separate applications. These two applications do not act as one. They are separate and they must both be successful. The fact that the company’s application was unsuccessful means that the individual’s application can never succeed. Where Mr Khan went wrong was in not asking for review of the decision in respect of Unique Tannery. He has many arguments, some of which he put to me as to why Unique Tannery is a business that should receive the approval of its nominations. That may well be the case but at the moment no such approval exists. There was an opportunity to obtain approval and that was not taken. It would not have availed Mr Ahmed for Mr Khan to appear at a hearing in his case to argue why Unique Tannery’s nominations should be approved when there was no application for review upon which the Tribunal could act. For this reason any referral of the matter back to the Tribunal to be heard and determined according to law would be a referral of total inutility. There still is no application for review of the original decision in respect of Unique Tannery and therefore there is still no valid nomination.
There was, in arguendo, discussion between myself and Mr Lloyd who appears on behalf of the Minister concerning the fairness of the letter dated 26 April granting an extension of time for the submissions that Mr Khan had requested on behalf of Mr Ahmed. Mr Lloyd had submitted that by virtue of the juxtaposition of s.359C(1) and s.363A the Tribunal was not allowed to provide the applicant an opportunity to appear before it once this request for additional information had not been complied with. I took the view that the wording of the emboldened parts of that letter did not state this but may have given a reader the impression that even if the letter was not complied with a hearing might have been granted. Mr Lloyd argued that at the time the letter was written that could have been the case because the applicant may have obtained a further extension of time and if he had then complied with the request for information a hearing would have been given.
This may be the correct analysis in law but I would suggest to the Department a consideration of the wording of these letters be given if it is to be argued that a person has no further entitlement to a hearing under any circumstances once the information requested has not been supplied within the time. I make no findings in relation to that matter because it is not necessary for the purposes of this decision.
The application is dismissed. The applicant is to pay the respondent’s costs which I assess in the sum of $4,500.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: