Akter v Minister for Immigration

[2020] FCCA 2083

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKTER & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2083

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Subclass 186 (Employer Nomination Scheme) visa – whether the Tribunal failed to exercise its jurisdiction by failing to consider all aspects of the claims – whether the Tribunal’s decision was illogical, irrational or unreasonable – whether there is jurisdictional error – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.359

Migration Regulations 1994 (Cth), cl.186.223

Cases cited:

WZATH v Minister for Immigration [2014] FCCA 612

First Applicant: FATEMA AKTER

Second Applicant: MOHAMMAD MOBARAK HOSSAIN

Third Applicant: RAFAN BIN HOSSAIN

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1716 of 2018

Judgment of: Judge Humphreys

Hearing date: 29 July 2020

Date of Last Submission: 29 July 2020

Delivered at: Parramatta

Delivered on: 6 August 2020

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Ms Wong, Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The First and Second Applicant’s, jointly and severally, pay the First Respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1716 of 2018

FATEMA AKTER

First Applicant

MOHAMMAD MOBARAK HOSSAIN

Second Applicant

RAFAN BIN HOSSAIN

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a female citizen of Bangladesh. On 9 January 2017, the first applicant applied for a Subclass 186 (Employer Nomination Scheme) visa. The second and third applicants were included in the visa application, as members of the first applicant’s family unit.

2. The application was made on the basis of the nomination by Tasne Enterprise Pty Ltd, dated 11 October 2017, to work in the nominated position as a Chef.

3. On the same day, the Department invited the first applicant to comment on information that the nomination submitted by the sponsor, had been refused. No response was received.

4. On 22 November 2017, a delegate of the Minister for Immigration and Border Protection (“the delegate”) refused to grant the subclass 186 visas because the first applicant was not subject of an approved nomination and therefore did not satisfy cl 186.223(2) of the Migration Regulations 1994 (Cth) (“the Regulations”).

5. The applicants’ applied to the Administrative Appeals Tribunal (“the Tribunal”) for merits review. The applicants’ attended the hearing on 11 June 2019. Prior to attending the hearing, information was provided to the applicants’ that one of the mandatory requirements for the grant of a subclass 186 visa, was that there was an approved employer nomination. If the Tribunal found that there was no approved nomination, then the decision under review, would be affirmed pursuant to s 359A(1)(b) of the Migration Act 1958 (Cth) (“the Act”).

6. In a decision dated 12 June 2019, the Tribunal affirmed the delegate’s decision under review, as there was no approved employer nomination.

7. The applicants’ now seek judicial review of the Tribunal’s decision.

Grounds of Judicial Review

1. A single ground of review is set out in an application filed with the Court on 8 July 2019. It is as follows:

   The Tribunal failed to exercise is jurisdiction by failing to consider all aspects of my claims.

2. No particulars were provided in support of the ground.

The Applicant’s Submissions

1. Due to health restrictions, the hearing was conducted by telephone. The applicant’s appeared before the Court unrepresented. They were assisted by an interpreter. The first applicant stated that she would be speaking on behalf of herself and the family.

2. At the commencement of the hearing, the Court ensured that the applicants’ were in possession of a copy of the Court Book and the first respondent’s written submissions.

3. The Court explained to the applicants’ that it could not undertake merits review and was restricted to judicial review, which was confined to jurisdictional error. After explaining the method by which the hearing would be conducted, the Court asked the applicants’ if they wished to say anything in support of their claim.

4. The first applicant told the Court that the situation she found herself in was not her fault, but the fault of her employer. The first applicant stated that she had been in Australia for twelve years and could not go back to Bangladesh. The first applicant’s son was in school and needed to finish his education. Other than that, the first applicant did not know what to say except to ask for some more time.

5. Following the completion of the first respondents oral submissions, the applicants’ were again asked if they wished to say anything in reply. The first applicant stated that she had nothing more to say.

The First Respondent’s Submissions

1. After setting out the background and history of the application in written submissions, the first respondent noted that the sole ground of the application alleges that the Tribunal “failed to exercises jurisdiction by failing to consider all aspects of my claims”. It was submitted that in the absence of any particulars to make this ground meaningful, it could not succeed (see WZATH v Minister for Immigration [2014] FCCA 612 at [60]).

2. The only issue on review before the Tribunal, was whether the first applicant met the requirements of cl 186.223 of the Regulations, in that she either had an approved employer nomination or there was a nomination review in progress. This was not the case.

3. The Tribunal considered the first applicant’s evidence about her work for the sponsor, but correctly found it had no discretion in respect of the requirements of the Regulations. This was not a matter where there is any area of discretion by the Tribunal.

Consideration

1. The Tribunal’s decision is relatively short. The Tribunal correctly identified that in order for a Subclass 186 (Employer Nomination Scheme) visa to be granted, the first applicant was required to have an approved nomination. The nomination made by her employer, Tasne Enterprise Pty Ltd to the Department, was not approved. The company withdrew its application for a review of the nomination, in relation to the first applicant.

2. Accordingly, the Tribunal wrote to the applicants’, pursuant to s 359A of the Act, inviting them to provide comments on this fact and that the withdrawal of the nomination would be a ground for refusing the applicants’ their visas.

3. At the hearing, the Tribunal explained the requirement that in order for a visa to be granted, there had to be an approved nomination in place. The Tribunal correctly noted that this was a mandatory requirement. As there was no nomination or nomination review in process, it had no discretion other than to refuse the first applicant her visa.

4. As the first applicant did not meet the requirements, her family members could also not be granted their visas, as their visas were dependent on the first applicant’s visa being granted.

5. The Tribunal noted a number of matters that were put to it, in relation to the first applicant’s treatment by the owners of the business, including allegations of being not being paid her work entitlements, however, these were not matters that the Tribunal could take into account, when considering her visa application.

6. The Court is satisfied that the Tribunal correctly followed all procedural requirements mandated by the Act. The Tribunal correctly instructed itself as to the relevant law, considered the matters raised by the first applicant and came to a conclusion, which was open to it, on the evidence before it. Indeed, the decision to affirm the visa refusal was the only decision open to the Tribunal in the particular circumstances of the matter. There is nothing illogical, irrational or unreasonable in the Tribunal’s decision.

7. The Court is satisfied that the Tribunal considered all aspects of the applicant’s claims. No jurisdictional error arises from the applicants’ sole ground of judicial review.

8. As the applicants’ are unrepresented, the Court has perused the Tribunal’s decision but can find no jurisdictional error, which has not been articulated by the applicants.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 6 August 2020