Akram v Minister for Immigration
[2019] FCCA 3366
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKRAM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3366 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Work (Skilled)(Subclass 457) visa – application for an adjournment by the Applicants – application refused – unparticularised grounds of review – no jurisdictional error established – application dismissed. |
| Legislation: Migration Regulations 1994, Clause 457.211 of Schedule 2, Item 3004 of Schedule 3 |
| Cases cited: GEZ18 v Minister for Immigration & Anor [2019] FCCA 263 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 WZATH v Minister for Immigration & Anor [2014] FCCA 612 |
| First Applicant: | ZEESHAN MUHAMMAD AKRAM |
| Second Applicant | SNODIA ZEESHAN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1224 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 10 October 2019 |
| Date of Last Submission: | 10 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Advocate for the Applicants: | Mr Warraich |
| Solicitors for the Applicants: | Huk Legal |
| Advocate for the Respondents: | Ms Roberts |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The Application filed on 9 June 2017 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1224 of 2017
| ZEESHAN MUHAMMAD AKRAM |
First Applicant
And
| SNODIA ZEESHAN |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 23 May 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants Temporary Work (Skilled) (Subclass 457) visas (‘visas’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The First Applicant, Mr Akram, is the primary applicant and the Second Applicant, Ms Zeeshan, is his wife. The Applicants are Pakistani nationals. They applied for the visas the subject of the present application on 19 January 2016. The application for the visas arose out of a nomination of the First Applicant made by his sponsoring employer, Benarge Pty Ltd.
At the time of the application, the First Applicant was not the holder of a valid substantive visa. The First Applicant’s last substantive visa expired on 10 September 2015.
On 15 June 2016, a delegate of the Minister (‘delegate’) refused to grant the visas. The delegate found that neither of the Applicants met the criteria set out in Clause 457.211 of Schedule 2, and Item 3004 of Schedule 3, to the Migration Regulations 1994 (Cth) (‘Regulations’).
The Applicants applied to the Tribunal for review of the delegate’s decision on 3 July 2017. On 23 May 2017, the Applicants attended a hearing at the Tribunal. On the same day, the Tribunal affirmed the decision of the delegate not to grant the Applicants the visas.
The Applicants applied to this Court for judicial review of the Tribunal’s decision on 9 June 2017. The Applicants were unrepresented at this time.
Orders were subsequently made for the conduct of the matter. The Minister filed and served written submissions pursuant to these orders. The Applicants failed to file any written submissions, or any amended application.
The application for an adjournment of the hearing
Legal representatives for the Applicants filed a Notice of Address for Service on 7 October 2019, three days prior to the hearing. At the hearing, Mr Warraich appeared for the Applicants.
Mr Warraich sought an adjournment of the hearing in order to file an amended application and an outline of submissions. The application was opposed by the Minister. I refused to grant the adjournment. I did so for the following reasons.
Firstly, the matter was filed in this Court over two years ago. The Applicants have had the benefit of that entire period to obtain legal representation. They had not, however, done so until three days prior to the hearing.
Secondly, Registrar Luxton made orders on 24 January 2018 permitting the Applicants to file any amended application and written submissions 28 days before the final hearing. The Applicants took no steps to do this, despite those orders being made over 18 months ago.
Thirdly, the First Applicant sought to rely on a medical report prepared by a psychologist that he claimed indicated he could not proceed with the hearing before me. The report does not support a proposition that the hearing ought not to proceed. I hold this view for the following reasons:
a)First, the report indicates that the First Applicant only self-referred to the psychologist on 13 September 2019. There is no acknowledged history of psychological treatment before this.
b)Second, the report prepared by the psychologist is based on an assumption that the First Applicant will need to give evidence and will need to argue his case. The report states that he is not capable of undertaking these tasks. The fact of the matter is, however, that the First Applicant is not required to do either of these things at the hearing. He has engaged a representative to argue his case. Further, this being a judicial review proceeding, he is not required to give evidence, and his representative did not indicate that he desired to call any evidence from him (to the extent such might be necessary).
c)Third, the report does not indicate that the First Applicant is unable to attend Court, or that he is unable to instruct a representative. He has, in fact, done both of these things.
Finally, this matter has been in this Court for some time. It is desirable and in the interests of justice that it be finalised.
The Application for Review
The Application for Review, filed on 9 June 2017 (‘Application’) contains three grounds of review. These are as follows:
‘AAT did not consider the evidence’
‘Did not consider the new evidence of the AAT decision’ (sic)
‘Jurisdictional error – Decision made not according to law – evidence – ignored. Under subsection 474(2) of the migration act 1958’ (sic)
At the hearing of the Application, the Applicants’ representative submitted that the Tribunal failed to take account of the following matters, which gave rise to jurisdictional error:
a)The First Applicant was the holder of a subclass 572 student visa which ceased on 10 September 2015.
b)The First Applicant had applied for a subclass 457 visa on 19 January 2016 (the ‘first 457 application’). He had sought the advice of a migration agent in relation to the first 457 application. The migration agent advised that the first 457 application ought to be withdrawn and this is what subsequently occurred.
c)The withdrawal of the first 457 application meant that the First Applicant was not the holder of a substantive visa at the time he made the application for the subclass 457 visa the subject of these proceedings (‘second 457 application’). He was the holder of a bridging visa at the time of the second 457 application.
d)The advice from the migration agent to withdraw the first 457 application was poor advice. The agent was subsequently the subject of criticism in respect of this advice.
e)The withdrawal of the first 457 application had the consequence that the First Applicant was required to meet the criteria set out in clause 457.211 of Schedule 2 to the Regulations in particular, item 3004 of Schedule 3 to the Regulations when making the second 457 application.
f)None of the above matters were taken into account by the Tribunal when it reached its decision to affirm the decision of the delegate.
When asked to do so, the Applicants’ representative confirmed that this was the only argument he sought to advance at the hearing.
A review of the reasons for the decision of the Tribunal discloses that the Tribunal found that the First Applicant did not meet the criteria in Item 3004 of Schedule 3 to the Regulations for two reasons. I set out the relevant passages of the Tribunal’s reasons below:
‘8. I will give you the reasons for my decision. I find on the evidence before me that at the time when you applied for a 457 visa, you did not have an approved nomination by your prospective employer. So on 10 September 2015, when your last visa ceased - sorry, when your 572 student visa ceased, you did not have an approved nomination from your sponsoring employer, which means that at that time when your substantive visa ceased you would not have been entitled to be granted a visa of the class applied for. You would not be able to satisfy the requirements for the 457 visa. One of the requirements for the grant of subclass 457 visa is that you do have an approved nomination.
9. The other reason why you do not meet the schedule 3004 criteria is that I do not accept on the evidence that I have before me that you ceased to be a holder of a substantive visa because of the factors that were beyond your control. I have taken into consideration what you told me about your father's illness, about the fact that your kids came about in that period, but I do not consider those reasons to be beyond your control.’
Item 3004 of Schedule 3 to the Regulations is set out in full at page 92 of the Court Book. For completeness, I have reproduced it below:
‘If the applicant:
(a) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b) entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c) the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d) there are compelling reasons for granting the visa; and
(e) the applicant has complied substantially with:
(i) the conditions that apply or applied to:
(A) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B) any subsequent bridging visa; or
(ii) the conditions that apply or applied to:
(A) the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B) any subsequent bridging visa; and
(f) either:
(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g) the applicant intends to comply with any conditions subject to which the visa is granted;
and
(h) if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.’
It is apparent when one examines Item 3004 of Schedule 3 to the Regulations that an applicant in the position of the Applicants needs to satisfy, among other things, the criteria set out in subparagraphs
(c) and (f). A failure by an applicant to satisfy either of these criteria will mean that an applicant has not satisfied Item 3004 of Schedule 3, and therefore has not satisfied subclause 457.211(b)(ii) of the Regulations.
The argument advanced by the Applicants at the hearing was directed at the criteria set out in subparagraph (c) of Item 3004 to Schedule 3. When regard is had to the decision of the Tribunal (the relevant extracts of which are set out above) it is apparent that the Tribunal did not consider, relevantly, the explanations that the First Applicant gave in relation to the issues he had with his migration agent and the withdrawal of the first 457 application (see paragraph 9 of the Tribunal’s decision extracted above). The Minister quite properly conceded this to be the case. Accordingly, if compliance with subparagraph (c) had been the only basis upon which the Tribunal reached its conclusion, it may well have been the case that the Applicants would have been able to demonstrate jurisdictional error.
Unfortunately for the Applicants, however, non-compliance with subparagraph (c) of item 3004 of Schedule 3 was not the only basis upon which the Tribunal reached its conclusion. As can be seen from paragraph 8 of the Tribunal’s decision extracted above, the Tribunal also found that the First Applicant ‘did not have an approved nomination from [his] sponsoring employer, which means that the time when [his] substantive Visa ceased [he] would not have been entitled to be granted a Visa of the class applied for’. This finding means that the First Applicant would not have been able to comply with subparagraph (f)(i) of Item 3004 to the Schedule 3 criteria. As, relevantly, both
subparagraph (c) and subparagraph (f) of Item 3004 to the Schedule 3 criteria needed to be complied with, this latter finding by the Tribunal was sufficient to dispose of the matter and affirm the decision of the delegate.
For the reasons set out above, I find that the Tribunal has not made an error of jurisdiction as contended for by the Applicant at the hearing.
While the Applicant did not advance any other argument at the hearing, it might be said that the grounds of review give rise to other claims by the Applicant that the Tribunal’s reasons are infected with jurisdictional error. To the extent such a claim might be made, I have considered the grounds of review against the Tribunal’s decision. The following is relevant. First, the grounds of review in the Application are wholly unparticularised. It is well-established that where grounds are unparticularised, that failure is sufficient to dispose of the Application: WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60]. This principle was most recently affirmed by Driver J in GEZ18 v Minister for Immigration & Anor [2019] FCCA 2631 at [34]. Second, I am of the view that the grounds do no more than express general disagreement with the Tribunal’s findings and impermissibly invite the Court to review the merits of the decision of the Authority. It is well understood that this Court cannot undertake a merits review: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 272.
For the above reasons, I dismiss the Application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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