Akter v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1608
•15 December 2021
FEDERAL COURT OF AUSTRALIA
Akter v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1608
Appeal from: Akter & Ors v Minister for Immigration & Anor [2020] FCCA 2083 File number: NSD 974 of 2020 Judgment of: YATES J Date of judgment: 15 December 2021 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia seeking judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the delegate not to grant an Employer Nomination Scheme (subclass 186) visa – whether leave to appeal should be granted for two new grounds Legislation: Migration Act 1958 (Cth) ss 359A, 359AA of the Act
Migration Regulations 1994 (Cth) cl 186.223
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 33 Date of hearing: 15 December 2021 Counsel for the Appellants: The Appellants appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting appearance ORDERS
NSD 974 of 2020 BETWEEN: FATEMA AKTER
First Appellant
MOHAMMAD MOBARAK HOSSAIN
Second Appellant
RAFAN BIN HOSSAIN
Third Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
YATES J
DATE OF ORDER:
15 DECEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first and second appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES:
INTRODUCTION
This is an appeal from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 6 August 2020 in respect of an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal). It concerns the first appellant’s application for an Employer Nomination Scheme (subclass 186) visa in the Temporary Residents Transition stream. The second and third appellants were included in that application as members of the first appellant’s family unit. The first, second, and third appellants are, respectively, mother, father, and son (a minor).
The first appellant applied for the visa on 9 January 2017. It was made on the basis of a nomination by Tasne Enterprise Pty Ltd (Tasne Enterprise) dated 11 October 2017 for the first appellant to work as a chef.
The requirements for the visa are set out in Pt 186 of Sch 2 to the Migration Regulations 1994 (Cth). The requirements comprise common criteria, primary criteria, and secondary criteria. The primary criteria are organised according to streams: the Temporary Residents Transition stream; the Direct Entry Stream; and the Labour Agreement stream. The primary criteria must be satisfied by at least one member of the family unit. The common criteria apply to all applicants seeking to satisfy the primary criteria applicable to the relevant stream. The other members of the family unit who are applicants for a visa of this subclass need only satisfy the secondary criteria.
As I have noted, the first appellant sought a visa in the Temporary Residents Transition stream. The primary criteria applicable to her application included the criteria specified in subdivision 186.223 which, at the relevant time, provided:
(1) The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19(3); and
(b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and
(c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The Minister has approved the nomination.
(3) The nomination has not subsequently been withdrawn.
(3A) Either:
(a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(4) The position is still available to the applicant.
(5)The application for the visa is made no more than 6 months after the Minister approved the nomination.
Essentially, the first appellant needed to establish, amongst other things, that her visa application was supported by an application for approval which, relevantly to her case, had been made by Tasne Enterprise, nominating her for the position of chef. She needed to establish that the application for approval had, in fact, been approved by the relevant Minister and that the nomination had not, subsequently, been withdrawn.
Unfortunately for the first appellant, the application for approval made by Tasne Enterprise was refused on 11 October 2017. Tasne Enterprise applied for a review of the refusal decision, but later withdrew its application for review.
On 11 October 2017, the Department of Immigration and Border Protection wrote to the first appellant informing her of the refusal of Tasne Enterprise’s application and stating that, in the circumstances, her visa application could not be approved. The first appellant was informed that, as there was no possibility of her visa application being approved, she might wish to withdraw the application. She was also informed, however, that, by withdrawing her application, she would give up any rights to apply for merits review by the Tribunal.
The letter sought a response within 28 days. It stated that, if there was no response, and the visa application was not withdrawn, the application would be refused.
The first appellant did not respond. Consequently, on 22 November 2017, a delegate of the Minister refused the application.
THE TRIBUNAL
On 11 December 2017, the appellants applied to the Tribunal to review the delegate’s refusal decision in respect of their visa applications.
On 26 March 2019, the Tribunal wrote to the appellants inviting them to comment on the fact that the application for approval lodged by Tasne Enterprise had been refused. Relevantly, the letter stated:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
•The application for approval of the nominated position made by Tasne Enterprise Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but that application for review has now been withdrawn. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
If we rely on this information in making our decision, we may find that the position specified in your visa application is not the subject of an approved nomination. This would mean that you do not satisfy a requirement for the grant of the visa and that we must affirm the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
The letter sought the appellants’ comments or response by 9 April 2019.
On 4 April 2019, the first appellant wrote to the Tribunal, stating that she wished to attend a hearing. The appellants attended a hearing before the Tribunal on 11 June 2019.
The issue before the Tribunal was whether the associated nomination of the first appellant by Tasne Enterprise had been approved. Plainly, it had not been approved. It followed that the first appellant could not satisfy the criteria of cl 186.223(2), with the consequence that the criteria of cl 186.223, as a whole, could not be met. The Tribunal therefore affirmed the decision under review.
Further, as the second and third appellants had applied for visas as family members of the first appellant, and as the first appellant could not satisfy the primary requirements for the visa—and there was no evidence that the second appellant or third appellant could satisfy those criteria—the Tribunal also affirmed the delegate’s refusal decision in respect of the second and third appellants.
THE FEDERAL CIRCUIT COURT
The appellants sought judicial review of the Tribunal’s decision in the Federal Circuit Court. They relied on a single ground, expressed as follows:
The Tribunal failed to exercise is jurisdiction by failing to consider all aspects of my claims.
The appellants did not provide particulars of this broadly-expressed ground.
The primary judge noted that the Tribunal’s decision to affirm the visa refusal was the only decision open to it in the circumstances. The primary judge was satisfied that the Tribunal had correctly followed all procedural requirements mandated by the Migration Act 1958 (Cth) (the Act) and had considered all aspects of the appellants’ claims. The primary judge was satisfied that no jurisdictional error was evident in the Tribunal’s decision, and dismissed the application for judicial review.
THE APPEAL
The grounds of appeal, as stated in the notice of appeal, are as follows:
1. The Court below erred in finding that the Administrative Appeals Tribunal (AAT) failed in its duty to provide procedural fairness to the applicant.
2. When we applied to the Federal Circuit Court, we did in a rush and could not provide sufficient details and particularised our grounds. I am an unrepresented applicant and request the honourable courts to grant leave to raise a news ground in the interest of justice.
3. Ground 1
The Tribunal failed to exercise is jurisdiction by failing to consider all aspects of my claims.
4. Ground 2
The Tribunal failed to comply with s 359AA and/or s 359A of the Migration Act 1958 in respect of information that was to be the reason, or part of the reason, for affirming the decision under review.
Particulars
The Tribunal failed to provide sufficient information related to the date that the Nomination application of Tasne Enterprise Ply Ltd was withdrawn.
In substance, three grounds are raised: (1) the Federal Circuit Court erred in not finding that the Tribunal did not provide procedural fairness to the appellants; (2) the Tribunal failed to consider all aspects of the appellants’ claims; and (3) the Tribunal failed to comply with s 359AA and/or s 359A of the Act by failing to provide sufficient information to the appellants in relation to the date that Tasne Enterprise withdrew its application seeking a review of the decision to refuse its application for approval nominating the first appellant for the position of chef.
The first and third grounds raise new matters that formed no part of the appellants’ application for judicial review. Leave is required to rely on those grounds in this appeal. The Minister opposes leave being granted on the basis that no satisfactory explanation has been given for not raising those matters as grounds of review before the Federal Circuit Court. Perhaps more importantly, the Minister also submits that these grounds are without merit.
On 8 September 2020, orders were made that the Minister file and serve a written outline of submissions no later than 20 business days before the hearing of the appeal, and that the appellants file and serve a written outline of submissions no later than 10 business days before the hearing of the appeal.
The appeal was allocated to my docket on 28 May 2021. On 31 May 2021, I listed the appeal for hearing on 26 July 2021. However, due to the difficulties associated with holding in-person hearings under the conditions of the Covid–19 pandemic, the hearing date was vacated. Given that circumstance, I raised with the parties the possibility of the appeal being determined on the papers. The appellants did not agree to this course, although the Minister was content for the appeal to be considered in this way.
In contemplation of the easing of restrictions in relation to in-person hearings, I made an order on 11 November 2021 that the appeal be listed for hearing on 15 December 2021. This was the first possible date on which an in-person hearing could be held without restrictions.
In the context of a hearing to take place on 26 July 2021, the Minister filed his written outline of submissions on 17 June 2021. The appellants did not, and have not, filed any written outline of submissions. Because of this, neither the Court nor the Minister has been assisted in knowing, in advance of the hearing, the respects in which the appellants claim that the Tribunal failed to provide them procedural fairness or the respects in which the appellants claim that the Tribunal failed to consider all aspects of their claims.
The appellants are not legally represented. They appeared in person at the hearing of the appeal. The first appellant addressed the Court on behalf of all the appellants, with the assistance of an interpreter. I explained that the appellants required the Court’s leave to rely on the first and third grounds because these matters had not been raised by the appellants in the judicial review proceeding.
The first appellant was unable to elaborate meaningfully on the grounds of appeal. She emphasised that she had done everything she could to satisfy the primary requirements for the visa. She believed that she had satisfied those requirements. She said that she does not know why Tasne Enterprise withdrew its application to review the refusal of its application for approval nominating the first appellant as a chef. It had let her down. She said that she had been in Australia for fourteen years and would not have work in Bangladesh if she were required to return there.
As to the first ground, the appellants have not articulated how, or in what respects, they were denied procedural fairness by the Tribunal. As I have recorded, on 26 March 2019, the Tribunal wrote to the appellants informing them of Tasne Enterprise’s withdrawal of its review application. This meant that its application for the nominated position had not been approved. The appellants were informed that approval of Tasne Enterprise’s application was a requirement for the grant of the visas. The appellants were informed that the non-approval of Tasne Enterprise’s application would be the reason, or a part of the reason, for the Tribunal affirming the decisions under review.
The appellants attended a hearing before the Tribunal at which they were given the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal’s Decision Record shows that the Tribunal was at pains to explain the difficulties which the appellants faced in establishing the criteria for the visas for which they had applied:
18.At the hearing, the Tribunal explained to the applicant the requirements in cl.186.223 and discussed with the applicant the evidence before it which indicates that the applicant does not meet that requirement. In response, the applicant stated that she started working for the business in 2014 and lodged the application for permanent residence when she became eligible. She stated that before lodging the permanent residence applicant she approached the owner and he assured her that everything would be fine. She stated that she had worked very hard for the business, including undertaking numerous hours of unpaid overtime. She stated that she was not paid any superannuation. The applicant stated that she became aware that the company had not paid the GST and consequently a bar was placed on the company and she had not become aware of this until after she had lodged the application for permanent residence. The applicant stated that she travelled overseas in 2018 for 6 weeks and after returning to Australia, she resumed work for her nominating employer despite being unwell.
19.The Tribunal acknowledged the applicant’s evidence and explained that it had no discretion in the circumstances as the nomination review had now been withdrawn and it appears that she has no prospect of meeting the requirement in cl.186.223(2). The applicant stated that the business was still operating though she was not sure if it had changed ownership. The applicant stated that she worked for the nominating employer until 2018 and after taking two weeks leave she got a letter from the owner stating that she had ceased employment. The applicant stated that the owner of the business had threatened her and she had to change her residence. The Tribunal explained to the applicant that if she had been threatened she should report it to the police. It also noted that she could seek advice from the Fair Work Ombudsman regarding any unpaid work entitlements.
20. The applicant stated that she has been in Australia for 11 years. She completed her studies in Australia, worked for an Australian business for the required period and her child was also born in Australia. She stated that in these circumstances, she is entitled to be granted a permanent residence visa.
21.The Tribunal explained to the applicant that while it accepted that she worked for the nominating employer for the requisite period, the issue in this case is not whether she had worked for the nominating employer but whether the nomination made by the employer in relation to her has been approved. The Tribunal explained to the applicant that in her case, the review of the nomination, in which she was identified for the position, was withdrawn by the nominating employer. The Tribunal noted that in the circumstances, the Tribunal has no jurisdiction in relation to the nomination decision and has no power to compel the nominating employer to continue with the review of the nomination. The applicant stated that she would not be able to return to Bangladesh as she has been in Australia for a long time. She stated that she cannot get employment in Bangladesh, that she is not well and has back pain.
22.The Tribunal has had regard the applicant’s evidence and acknowledges the difficulties stated by her. However, as explained to the applicant, the issue which must be determined by the Tribunal is whether the relevant nomination has been approved. There is no provision in the legislation to take into account the applicant’s personal circumstances or the conduct of the nominating employer. In this case, the review of the relevant nomination has been withdrawn by the nominator and on this basis, the applicant is unable to satisfy the requirement in cl.186.223(2).
In his reasons for judgment, the primary judge recorded (at J[25]) that, as the appellants were unrepresented, he had perused the Tribunal’s Decision Record to consider whether any jurisdictional error was evident. He could not find any such error. Moreover, the primary judge expressed his satisfaction (at J[23]) that the Tribunal had correctly followed all procedural requirements mandated by the Act. The appellants have not demonstrated any error in that finding. I am unable to see any basis on which it could be found that the appellants were denied procedural fairness by the Tribunal. The first ground of appeal is without merit. The appropriate course is to refuse leave to rely on it in this appeal.
The second ground of appeal is simply a repetition of the ground of review rejected by the primary judge. It does not allege error on the part of the primary judge. The appellants have not demonstrated any error in the primary judge’s finding that the Tribunal had considered all aspects of the appellants’ claims. Indeed, the primary judge was correct to observe that affirmation of the delegate’s decision was the only decision open to the Tribunal in the circumstances. This ground of appeal therefore fails.
The third ground of appeal is without merit. Under ss 359AA and 359A, the Tribunal must give a review applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The Tribunal did this by its letter dated 26 March 2019: the application for approval made by Tasne Enterprise had not been approved. The fact that the letter did not specify the date on which Tasne Enterprise withdrew its application to review the refusal decision concerning its application for approval, is neither here nor there. The date on which Tasne Enterprise’s review application was withdrawn could not be the reason, or part of the reason, for affirming the decision under review—which was the delegate’s refusal to grant the visas for which the appellants had applied. That date is simply an immaterial detail. Once again, the appropriate course is to refuse leave to rely on this ground in the appeal.
CONCLUSION
The appellants have not demonstrated error in the judgment under appeal. The appeal will be dismissed, with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates. Associate:
Dated: 15 December 2021
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